1.Execution
or advancement of justice. Under Chapter 4, Art 22 of the Constitution, 1995,
no person should be deprived of his or her life except in execution of a
judgment, confirmed as to conviction and sentence by the Supreme Court.
2.In
reasonable defence of property and person. Section 15 of the Penal Code Act
3.As
a result of an accident or misadventure except if there is negligence.
If the homicide is unlawful, the offence may be Murder undersection-188 of the Penal Code Act, Manslaughter under section 187, Infanticide under section 123 or causing death through reckless acts.
In each case, it is
only unlawful homicide if: -
a) The
deceased dies within a year and a day
of the act or omission causing death. Section
198 of the Code refers.
The
original justification for this rule was to avoid the difficulty of tracing the
cause of death when there is a long interval between the infliction of the
injury and the death. Leading Criminal law authors now submit that in the
present state of medical science, rule can only be justified on the ground that
one who has injured another should not remain indefinitely at risk of
prosecution for murder. But the rule remains valid both for murder and
manslaughter. In R V Dyson [ 1908]2 KB
454, the accused inflicted injuries on a child in November 1906 and again
in December 1907. The child died in May, 5 1908. The accused was indicted for
manslaughter. The judge directed the jury that they could find the accused
guilty if they considered death to have been caused by the injuries inflicted
in November 1906. The Appeal Court set aside the conviction, holding that “it undoubtedly the law
of the land that no person, can be convicted with manslaughter where the death
does not occur within a year and a day after the injury was inflicted, for in
that event, it must be attributed to some other cause.
Time
runs not from the date of the accused’s act but from that of the infliction of
the injury where these are different e.g. the accused plants a bomb on January
2, 2000, the bomb goes off on January 2, 2002 and gravely injures the victim.
The accused is guilty with homicide if the victim dies before January 2, 2003.
b) In
the case of a child, if it is born in a living state, that is when it has
completely proceeded in a living state from the body of its mother, whether it
has breathed or not and whether it has an individual circulation, or not and
whether the naval string is severed or not that is to say, a child to be a
victim of murder, the child must be wholly expelled of the mother’s body and it must be
alive. See Section 197 of the Penal
Code Act. The child, it is commonly said must have an existence “Independent of the
mother”. The tests of
individual existence that the Courts have accepted are that the child should
have an individual circulation and should have breathed after birth.
In R.Vs.
Brayn 1834 said, “It
is not essential that it should have breathed at the time it was killed as many
children are born alive and yet do not breath for some time after their birth. “This appears to be
more consistent with our section 197.
only being kept alive by some apparatus?
The current medical view is that the test is one of brain death and that this can
be diagnosed with certainty
C) The
killing must be through an unlawful act.
In
Marwa S/o Robi vs. R [ 1959] EA 660,
the appellant had killed the deceased by spearing him when the deceased had
come to collect cattle which he claimed. The appellant had raised the defence
of Defence of property which for reasons set out in the judgment failed. The
unlawful act was the use of excessive force and the appellant was convicted of
murder. In Olendito vs. R EACA 61,
the appellants beat their sister to death using sticks about the thickness of
one’s little finger. She
was beaten in accordance with native custom that allowed chastising women who
refused to return to their husbands. They would have been convicted with murder
but for their “mentality
and stage of civilization”
which
the Court found was not in such a state as to have enabled them to appreciate
that what they were doing was unlawful.
In
Defasi Mugayi vs. R [1965] EA607,
the appellants had been incited by a chief to beat suspected thieves to death.
Upholding their conviction for murder, the Court of Appeal stated that none of
the appellants could shelter behind the invitation or order of a chief which
they must have known, was not a lawful order which they were bound to obey and
they must have known as much as the Chief said that he would be responsible and
they knew that what they were doing was wrong.
In
Paul s/o Mabula Vs. R [ 1953] 20 EACA
207, the appellant killed his wife as a result of an act intended to kill
himself, she endeavoring to save him from cutting his throat. He alleged that
wound inflicted on his wife was accidental and therefore there was no malice
aforethought. It was held that where as a result of an act by an accused person
intended to kill himself and another is killed, he was properly convicted of
murder even if he did not intend to kill that other person. In R Vs. Semimi [ 1949] ALLE.R 223, while
walking with a woman, the appellant passed three men one of whom made a remark
about the woman which the appellant resented. He went back, knocked down one of
the men and in the ensuing scuffle, he killed one of them by stabbing him
through the heart with a knife which he was carrying. Three weeks to the
incident, he had showed one Ashley a knife with a blade about 8 inches and said
that he would use it if attached by more than one person. On being charged with
murder of the deceased, he pleaded that the killing was by chance – medley and
amounted to manslaughter not murder. There was evidence that he had been
restrained by standers and being a pugilist, wretched himself free and drew his
knife. It was held that the doctrine of chance – medley no longer applies in the law of
homicide. Appellant was found guilty of murder, the Court holding that there
was not much provocation to justify the use of such deadly weapon. It was a
dreadful and cowardly act of revenge on a man who had assisted the appellant’s first victim and was
prepared to repel an attack on himself.
For a person, to be
convicted of any of the unlawful homicides, there must be proof of a dead body.
A fundamental rule of criminal law and procedure is that no person shall be
called to answer an accusation or be involved in the consequence of guilt
without satisfactory proof of the corpus delict, either by direct evidence or
irresistible ground of presumption. The facts which form the basis of the
corpus delict ought to be proved whether by direct testimony or by presumptive
evidence of the most cogent and irresistible ground or by clear and unsuspected
confession of the party.
In
the Kimweri case – commenting on
the request made by prosecution to Court to find that the wife was dead, Court
had this to say.
“While
death may be proved by circumstantial evidence, without evidence as to the
production of the body of the dead person and without any evidence of the
person who saw the body of the dead person and without confession by a person
accused that he caused the death yet the Court asked to find in a murder charge
that a person is dead in a circumstance which we have stated, the evidence on
which the Court is asked to infer the death must be such as to compel the
inference of death and must be such as to be inconsistent with any reasonable
theory of the alleged deceased being alive with the result that taken as a
whole the evidence leaves no doubt whatsoever that the person in question is
dead. We would give as an example of what we mean the case of a person, on a
ship in the middle of the ocean. Evidence is given that a scream was heard and
a splash was heard, but there is no evidence that any particular person was
seen to go overboard. The ship is searched and subsequently a person to whom
evidence is given that that person was a passenger on that ship is found
missing. In those circumstances although there was no evidence of a body,
although no one came forward and said that the body of the alleged deceased was
seen and although there was no confession by anyone, nevertheless those
circumstances are such as to compel the inference of death.”
Some confession in
cases of murder, are not enough to convict a person
In
R vs. Kersey, 21 Cox 690, the charge
was murder of an infant and except for medical evidence that the accused had
recently delivered; there was no other evidence but an extra judicial
confession. The confession alone was not considered sufficient evidence that
the child had a separate existence from its mother. On these facts, the accused
was convicted with the offence of concealment of birth.
Compare case with that
of:
R v Pettagazi 4 WR 19.
The accused was convicted of murder. There had been a confession to a police
magistrate by Petta and 2 others. At the session, Petta made a statement
amounting to homicide altogether. The confession had been made in the first
place to a police officer in consequence of which he had found the grave and a
sign of recent exhumation, but no dead body was found in the grave. In the
grave however, there were two pieces of cloth identified as having been worn by
the deceased on his disappearance. The accused was convicted of murder on the
basis of evidence other than his own confession.
In
R v Oufrejezyk [ 1955] 1 ALL ER 247,
the appellant and one S owned a farm in partnership. Their farming venture was
a failure and in need of money. The deceased wanted to break off his
partnership with the appellant. The last occasion when S was seen alive by
anyone other than the appellant was on December 14, 1953 when S took a horse to
the local blacksmith to be shod. Thereafter S disappeared completely and his
body was never found. When the appellant was called to give an account of the
disappearance, he told a story of the departure of S which was improbable and
was inconsistent with the prior account given by the appellant to the officer
who had gone to the farm on December 18, 1953. The appellant wrote contemporary
letters explicable only on the footing that he never expected S to return and
put forward a proposition to one “P” which if correct out would have involved
S being impersonated. Further, the appellant endeavored to persuade the
blacksmith to say that S had taken the horse to be shod on December 17, 1953.
Minute amounts of the blood of S were found in the walls and ceiling of the kitchen
in the house occupied by the appellant. The appellant was charged with the
murder of S. The issue was whether or not there was proof of what the law calls
“corpus delict” (first a crime
has been committed and the man is dead and that his death has been caused by a
crime.). It was held that at a trial of a person charged with murder the fact
of death leading to one conclusion is provable by circumstantial evidence not
withstanding that neither the body nor any thing of body has been found and
that the accused has made no confession of any participation in the crime.
Before he can be convicted, the fact of death should be proved by such
circumstances as render the commission of the offence certain and leave no
ground for reasonable doubt. The circumstantial evidence should be so cogent
and compelling as to convince a jury that upon no rational hypothesis other
than murder can the facts be accounted for. S had died not of natural death and
a corpus delict had been established. The appellant murdered S. The short
principle established by this case is “On a charge of murder, the corpus delict
may be proved by such circumstantial evidence as leaves open no other rational
hypothesis than murder.”
In
Kimweri vs. R 1E. A 452, the appellant was charged with and convicted of
murdering his wife from whom he had been separated and to whom his petition for
divorce had failed. Appellant was
ordered to pay maintenance to his wife and in the meantime, he had a liaison
with another woman. The appellant’s wife had disappeared from her room on
a day on which the prosecution alleged that the appellant had visited her in
Moshi (TZ) and a few days earlier, the wife’s father received a letter purporting to
come from one Kamau and stating that the appellant’s wife had gone to Nairobi
with Kamau, met an accident and died. No such accident on the contrary had
happened. It was held that although death may be proved by circumstantial
evidence, that evidence must be such as to compel the inference of death and
must be such as to be inconsistent with any theory of the alleged deceased
being alive, with the result that taken as a whole, the evidence leaves no
doubt whatsoever that the person in question is dead. The circumstances in the
present case raised considerable suspicion that the wife was dead but did not
compel resistibly the inference of death.
In the Kimweri case, there were
technical problems in the way the evidence of the relevant circumstances was
proved. E.g. the contents of the Kamau letter were found inadmissible and the source
of the letter was doubted. Court said at Pg. 454.
“Earlier we have
referred to certain circumstances from which the death is to be presumed, we
have said that even if those circumstances were proved to be the received a
letter and circumstances in existence still we would not consider that they
pointed compellingly and irresistibly to the wife being dead. We would mention
that we are satisfied that some if not all of those circumstances were proved
by evidence which was inadmissible. As far as the evidence of the letter
referring to the accident is concerned, what happened was that a Tanzanian
witness gave evidence of the result of inquiries given in Kenya. From these
inquiries, he was informed that no such accident had happened and no such
person is dead. That evidence was inadmissible. The result is that the lack of
truth of the contents of the letter of November 18 upon which the prosecution
so relied in order to prove the guilt of the appellant had not been proved. We
must also mention that the evidence of making the letter of November 18 which
the appellant had proved, to be inadmissible evidence. The evidence was that
the typewriter expert had compared the letter in question with a sample handed
to him which purported to come from the typewriter to which the appellant has
had access. The prosecution did not call the person who typed that sample. Thus
there is no admissible evidence that the letter was typed on a typewriter to
which the appellant has had access. Finally, the letter itself is to say the
least doubted admissible. This is a letter which purports to be addressed to
the wife’s father. It should
have been produced in evidence by the father or at least he should have been
called to say that he that he handed it to somebody else who subsequently
produced it”.
In
RV Abdullah 16 KLR 117, the accused was charged with the murder of the husband
of the second accused. It was proved that L had been missing from the home. The
first accused had resided with L and his wife since 1933. Two brothers of
deceased had made certain inquiries and gave evidence of an inconclusive
character of statements made between the accused to them. L’s certificate was found
in his hands. No body or part thereof could be discovered and there was no
confession. It was held that where there is no evidence of corpus delict and
the confession of the accused, such confession in the absence of evidence of
confirmatory circumstances is not sufficient to satisfy a conviction of murder
or manslaughter.
2.0
MENS REA OF MURDER
This
is traditionally called malice afore thought. This is a technical term with a
technical meaning different from the ordinary or popular meaning of the two
words. The phrase, it has been said “is a mere arbitrary symbol for the
malice may have in it nothing really malicious and need never be really afore
thought. Thus a parent who kills a suffering child out of motives of compassion
is malicious for this purpose and there is sufficient aforethought if an intention
to kill is formed only a second before the fatal blow is struck. Neither ill
will nor premeditation is necessary.
The
meaning of the term is of utmost importance for it is the presence or absence
of malice afore thought with determines whether unlawful killings is murder or
manslaughter. In R vs. Cunningham [
1957] 2 Q B 396 It was stated that malice is either an actual intention to
do the particular kind of harm or recklessness as to whether such harm will
occur or not. Under Section 191of the PCA;
malice now consists of an intention to kill any person whether such person is
the person actually killed or not i.e. express malice. It also Comprises of
Knowledge that the act or omission, causing death will probably cause the death
of some person whether such person is the person actually killed or not
although such knowledge is accompanied by indifference whether death is caused
or not or by a wish that it may not be. This is what is referred to as implied
malice.
The Supreme Court has
had opportunity recently to determine the scope of section 191of the Penal Code
Act,
In
the celebrated case of Nanyonjo Harriet
and Anor v Uganda. Crim. Appeal No 24 of 2002, decided in 2007. The Court
speaking through, Mulenga JSC criticized the Court of Appeal for basing a
conviction for murder on unproved evidence suggesting an intention to cause
grievous bodily harm. In a characteristically robust judgment, Mulenga JSC,
held that the judicial precedents of DPP
vs. Smith [1961] AC 290 and R vs.
Tubere [ 1945] EACA 63, which held that malice aforethought is defined as
an intention to commit an unlawful act to any person , foreseeing that death or grievous bodily harm is the natural and
probable result were irrelevant to the instant case because, unlike the UK and
Kenya from which the precedents originate, Uganda amended its code in 1970 and
removed from the relevant section 186, (now 191) any reference to an “intention to cause
grievous harm” and
“knowledge that grievous
harm will probably be caused”.
Courts
have also been very clear, that in cases of homicide, the intention and
knowledge of the accused person at the time of committing the offence is rarely
proved by direct evidence. The Court finds it necessary to deduce the intention
or knowledge from the circumstances surrounding the killing, including the mode
of killing, the weapon used and the part of the body assailed. See Nanyonjo Harriet v Uganda and Uganda vs. Dr.
Aggrey Kiyingi and two others.
2.1 EXPRESS MALICE
This
describes an intention to kill. Provided such an intention is proved it matters
not whether the person killed is the one intended or some other person. Thus if
robbers lie in wait for A with the intention of killing him, it is still murder
in fact if they kill not A but B. Similarly, where a husband gives a poisoned
apple to wife and the wife hands the apple to the child, the further is guilty
of murder. Where a person intending to kill himself kills another it is still
murder.
See
Paul s/Mabula Vs R, where the Court
of appeal gave two reasons for this view.
1. Suicide
is a felony even though it cannot be prosecuted so that the killing is a
killing in the course of committing a felony entailing violence.
2. It
is treated as transferred malice resulting into transferred murder.
If
there is a fight with many participants and one man dies, each of the
participants will be guilty of murder if it can be proved that each had the
common intention to kill. Common intention may be formed at the outset of the
crime expedition or it may arise spontaneously on the spur of the moment.
The
Court of Appeal for East Africa has held that common intention generally
implies premeditated plan, but this does not rule out the possibility of a
common intention during the course of events though it might not have been
present to start with.
See
Wanjiru vs. R Vol. 22 EACA 521. Thus
where a gang sets out together to kill and a person is killed by one member of
the gang, all members of the gang are guilty of murder, where three persons set
out armed with lethal weapons with a common intention of stealing goats and in
order to fulfill their purpose kills the custodian of the goats, all are liable
to be convicted of murder.
It
is murder to kill in the course of a felony but it is uncertain whether a
common intention to steal makes a gang of thieves all responsible for death
caused by one its members. What is certain is that there must be at least a
common intention to offer violence in pursuit of the common intention to steal.
This common intention to use violence may be inferred from the fact that a gang
is armed with lethal or dangerous weapons even if one of them is so armed.
Where there is an
intention to kill that intention can be presumed to continue throughout the
course of the action.
See
R vs. Ojambo s/o Nambio. The
deceased was caught stealing in the appellant’s shamba and tied up the appellant and
beat the deceased so severally that on being untied he fell down and seemed to
be dead. Appellant believing, he was dead removed his body to a swamp. The
deceased in fact was alive and died of asphyxia resulting from the immersion in
the muddy water. The immersion in water was so closely connected with the
beating as to constitute one continuous transaction, the cumulative effect of
which was to cause death. Accordingly, appellant’s offence was Murder. It would have been
no defense to argue that the immersion in water was not accompanied by malice
aforethought for the beating and the immersion in water together constituted
the malice aforethought.
In
Thabo Meri vs. R [ 1954] 1ALL E.R 377,
the appellant had a pre-arranged plan, they took a man to a hut and gave him
beer and he became partially intoxicated. Later, they struck his head and
believing him to be dead took his body and rolled it over a cliff with an
intention of making the murder look accidental. In fact, at the time, the man
was not dead but died a few minutes in exposure during his unconscious state of
mind at the foot of the cliff. The question was whether these accused were
guilty of the offence of murder. Lord Reed held that there were two acts done
separately, the first in the hut and another by placing the body out. While the
first was accompanied by malice aforethought, it was not the cause of death.
The second act caused death. It was difficult to separate the two acts which
formed a series of acts because the accused set to do all the acts to achieve a
plan. Therefore, it is wrong to say that because they were of mistaken belief
at one stage, their purpose thought had been achieved before it was and cannot
escape the penalties of law.
2.2 IMPLIED MALICE
It
is murder where a person does an act causing death that is intrinsically likely
to kill and which he knows is likely to kill although there is no evidence of
express malice. Thus if a person sets fire to a house knowing or having
reasonable grounds for believing that a person is asleep inside, he is guilty
of murder for the death, for he knows that the probable consequence of his act
will be to cause death. See Hyam vs. DPP
and R. vs. Tirugurwa 10 EACA 44. It is immaterial whether the person
against whom the act has been directed is the person actually killed or whether
it is somebody else provided that there was foresight of the consequences of
his acts. It is also immaterial that the accused did not want to cause death.
In
Hyman vs. DPP, the appellant set
fire to a dwelling house by deliberately pouring about ½ gallons of petrol. The
house contained four persons presumably asleep. She did nothing to alert them
of the danger she had put them in. Her act was that of jealousy against the
owner of the house whom she believed to be engaged to a man, she had temporally
discarded. Two girls died due to the fire. Her defence was that she intended to
frighten the lady off the village and she did not intend to cause death or
bodily harm. The issue was whether death resulted from the direct intention to
kill or willful doing of an act of which death is a probable consequence. It
was held that the appellant was guilty of murder when she set fire to a house,
she should have realized that it was highly probable that one or more of the
inmates would suffer serious bodily harm in consequence of her act not limited
to harm of such nature as to endanger life.
In
R vs. Serne, (1887) 16 Cox 331, it
was held that a person who sinks a ship at sea of his own does not escape liability
for the drowning of passengers by hoping that they will be picked by a passing
vessel. This is because a man is presumed to know the natural and probable
consequences of his acts unless the contrary is proved.
In
Hull vs. R 1664, a workman, after
shouting, ‘stand
clear”, threw down a piece of
timber from a house two stories high. All the work men below moved except for
one who was killed. It was held that “when a workman flings down a stone or
piece of timber into the road and kills a man, this may either be misadventure,
manslaughter or murder, according to the circumstances under which the original
act was done. If it were in country village where there are a few passengers
and he calls out all people to take care it is a misadventure only but if you were
in London or other popular towns where people are continually passing it is
manslaughter, though he gives loud warning and murder if he knows of their
passing and gives no warning at all”.
Knowledge that death is
likely to result is enough.
In
Mongola Vs. R [ 1963] R and N 291,
the appellant abandoned his seven months’ child in a thicket sufficiently far
from the village so that its cries could not be heard and in such a place that
a search would not readily discover it. In upholding his conviction for murder,
the Court applied the principle in RVs. Ward. In this case the judge had
directed a jury that when the prisoner did the acts he must as a reasonable man
have contemplated that death or grievous harm was likely to result. He was
guilty of murder. In the case, the appellant as a reasonable man must have
known that death or grievous harm would probably befall a child abandoned in
such a remote area.
2.3. CONSTRUCTIVE
MALICE.
There
is also constructive malice, which is probably covered under section 191(b).
Any reference to intention inferred from the fact that the accused were taking
part in the commission of another crime was equally removed by the 1970
amendment. The law is not clear, where this type of malice aforethought falls.
Nevertheless, authorities establish that where it is killing in the course of
burglary it is immaterial that a minor blow which caused the deceased’s death was inflicted.
In
Sentali vs. R Vol. 20 EAC. 230, the
appellant was convicted of the murder of a woman as a result of violence
inflicted on her by the appellant in the furtherance of his committing a felony
in her house. It was held that by virtue of S. 186 (c) of the Penal Code Act,
if death is caused by an unlawful act or omission done in the furtherance of an
intention to commit a felony, malice afore though is established. Court said
“in our opinion, the possession, by the appellant of cloth belonging to the
deceased coupled with a broken door and the disorder in the house all lend
irresistibly to the conclusion that the appellant’s purpose in entering the deceased’s house that night was
to commit a felony if, then it was with this felonious intention or purpose of
his mind that the appellant offered violence to the deceased, it matters not
what degree of violence was used if the violence did in fact however
unexpectedly or unintentionally cause death……..In Uganda it is sufficiently if death
be caused by an unlawful act or omission done in furthermore of an intention to
commit any felony”.
2.4 DEFENCES TO MURDER
These
are categorized into partial and complete defences. A complete defence is one
which if successfully raised leads to the acquittal of the accused of the
offence of murder. A partial defence has the effect of reducing the offence to
manslaughter. Generally, the defences to murder include diminished
responsibility, under section 194 of the Act, Mistake of fact under section 9,
and Intoxication under section. 12, Provocation under sections 192, and 193 and
defence of person and of property under section 15. With the exception of
diminished responsibility and insanity which must be proved by the accused. All
other defenses must be disproved by the state. The Court must avail the accused
any defence that appears on the evidence even if the accused has not
specifically raised the same. See Kiyengo vs. Uganda [ 2005]2
E.A
106
2.5 DIMINISHED
RESPONSIBILITY
The
British equivalent of S. 194 of our PCA was
considered in case of R vs. Byrne [
1960] ALL ER The appellant admitted strangling a girl in a hostel and
mutilating her dead body. Medical evidence showed that the killing was under
the influence of his perverted sexual desires. He would suffer from violent
sexual desires such that he would find it difficult to control his desires he
would be a normal person when under those sexual desires. At the time the
accused killed the girl he was suffering from perverted sexual desires. It was
important to consider whether the accused was insane in the sense as laid down
in the M’Naghten case or as a case of psychopathy and could be properly
described by partial insanity. The defence has also been considered in several
other cases such as R vs. Dunbar [ 1958] 1QB 1, R vs. Morris [ 1961] 2 QB 237,
R vs. Bathurst [ 1968] 2 QB 99 and R vs. Walden [ 1959] 1W.L. R 1008. The key
difference in the application of this defence in Uganda and in the United
Kingdom is that in the latter jurisdiction, the accused is convicted of manslaughter,
where as in the former jurisdiction, the accused is convicted of Murder but
with diminished responsibility.
In
the Byrne case, the issue in court was whether the accused at the time of
killing was suffering from any abnormality of mind. Court reduced the charge to
manslaughter. The Court in passing the Judgment held that ‘Abnormality of mind’, which has to be
contrasted with the time honored expression in the M’Naghten Rules ‘defect of reason’ means a state of
mind so different from that of ordinary human beings that the reasonable man
would term it abnormal. It appears to us to be wide enough to cover the minds
activities in all its aspects, not only the perception of physical acts and
matters, and the ability to form a rational judgment as to whether an act is
right or wrong, but also the ability to exercise the will power to control
physical acts in accordance with the rational judgment. The expression ‘mental responsibility
for his acts ‘points
to a consideration of the extent to which the accused’s mind is answerable
for his physical acts which must include a consideration of the extent of his
ability to exercise will power to control his physical acts. Whether the
accused was at the time of the killing suffering from any ‘abnormality of mind in
the broad sense is a question of fact for the jury. On this question medical
evidence is no doubt of importance, but the jury is entitled to take into
consideration all the evidence, including the acts or statements of the accused
and his demeanor. They are not bound to accept medical evidence if there is
other material before them which, in their good judgment, conflicts with it and
outweighs it. The aetiology of the abnormality of mind (namely whether it arose
from a condition of arrested or retarded development or any inherent causes, or
was induced by disease or injury) does, however, seem to be a matter to be
determined by expert evidence…”
This
defence is related to insanity, it applies to murder and it was developed
because there are many people who have mental problems but who cannot satisfy
the strict interpretation of insanity. Imbeciles and idiots are not legally
insane and thus fall under this category. In a trial for murder, it is for the
accused to show that he/she comes under S. 194 of the Act and where such a
defence is raised successfully, a person shall never the sentenced to death but
is to be convicted of murder but with diminished responsibility meaning the
convict will not be sentenced to death but put in safe custody and dealt with
under section 105 of the Trial on Indictment Act. The Supreme Court has had
opportunity to consider this defence in the case of Rukarekoha vs. Uganda [1999] E.A. 303 where Mulenga, JSC, gave some
guidance to the application of the defence and also disapproved some commentary
made on the defence by Collingwood, in his book, Criminal Law of East Africa
and effectively overruled Uganda vs.
Kankuratire [ 1975] HCB134.
3.0
INTOXICATION
This
is only a defence if it renders the accused incapable of forming the necessary
mens rea for murder. Intoxication can be caused by alcohol or drugs. The
Supreme
Court
recently considered that defence and held in the case of Kiyengo vs. Uganda
[2005] 2 EA, 106 “that
in considering the defence of intoxication, the question was not whether the
accused person was or was not capable of forming the intention but rather
whether by reason of the drink taken, he did not form the intention. In this
instant case, the Court of Appeal had correctly directed itself on the question
of intoxication in stating that intoxication could become a defence under
section 13(4) of the Penal Code Act and could be taken into account for the
purposes of determining whether the accused had formed an intention to kill.
The test to be applied was whether, having regard to the circumstances,
including those related to drinking, it could safely be said that the
prosecution had proved beyond reasonable doubt that the accused had the
requisite intent at the material time.”
Evidence
which shows that the accused’s
mind was so affected by drink that he readily gave way to some violent acts
affords no defense.
See
DPP vs. Bead [ 1920] AC 479, nor
does an accused have a defence where he got himself drunk in order to give
himself the courage to carry out some purpose. In some cases, so far from being
a defence it can be an aggravating factor for sentence.
See
A.G vs. Gallagher (1961)3 ALL E.R 299
Gallagher suffered from psychopathy, a disease of the mind which could be
aggravated by drink to cause him more readily to lose control of himself. When
sober, he formed the intention of killing his wife; he purchased a bottle of
whisky of which he may have drunk some of it before he killed his wife with a
knife. The HOL affirmed Gallagher ‘s conviction for murder holding that: -
1. The
defence of insanity could not be made good with the aid of whisky.
2. The
defence of intoxication was not available because the accused had already
formed the intention to kill before he took the whisky.
Lord Denning said;
“A psychopath who goes
out intending to kill knowing it is wrong and does kill cannot escape the
consequences by making himself drunk before doing it.”
Total lack of purpose
or motive may be ground for court to infer intoxication negatives mens rea.
In
Kinuthia s/o Kamau vs. R 17 EACA 137,
the accused without any apparent motive or purpose smashed a window chased a
small boy, struck a person on the arm with a panga threw it at him and then
struck the deceased in the back of the head with a piece of firewood.
Throughout, the incidents, there was evidence that the accused fell down and
stood up. He was later found asleep on top of a panga and smelling heavily of
alcohol. Conviction for murder was substituted with manslaughter.
This case should be
contrasted with:
R vs. Chirwa Vol.5 NRLR
212
where the accused returned from a beer party in the early hours of the morning
apparently in search of a man whom he alleged to be responsible for a wound on
his temple. The accused engaged in an intercalation and fighting first with one
chithembi and then with the deceased who died as a result of kicks by the
accused to the face and head. Court found that the accused at the material time
was able to be selective as to those whom he chose to assault and that he was
able to talk to a number of persons without assaulting them. Indeed, throughout
the period to which the evidence is related, the prisoner was able to keep his
objective of trying to find this man. See also Ssesawo vs. Uganda [ 1979] HCB
122 and Illanda vs. R [ 1960] E.A 780.
4.0
INSANITY
In
Nyinge Suato vs. R [ 1959] E.A 974,
under delusion that an inspector of police was plotting his death, the accused
killed him. He surrendered to the police and stated that having killed the
inspector; I have come here to be killed because they want my head. The issue
was whether the accused did raise the defence of insanity. The Court decided
that the defense of insanity depends on the nature of delusiveness. Thus where
the accused say I have come to be killed indicated that he knew that what he
had just done was wrong and was accordingly merely meeting a justifiable
killing.
4.1 DEFENCE OF PERSON
AND PROPERTY
The
killing of another is justifiable where an accused acts without vindictive
feelings and believes on reasonable grounds that a person’s life is in eminent
danger and that his action is absolutely necessary for the preservation of
life.
In
R vs. Marlin 5 NRLR 79, a quarrel
arose between the accused and his wife. The wife rushed out of the room saying
that she was going to shoot herself. The accused followed his wife and found
her in the kitchen with a short gun in her hand. He thereupon struck her on the
jaw, and the wife fell and injured her skull fatally. Woodman C.J upheld the
defense submission that the accused had no case to answer on a charge of manslaughter.
He ruled: -
1. The
accused had reasonable grounds for believing and honestly believed that the
blow was necessary to prevent the deceased from committing suicide. Therefore,
his act in striking the blow was excusable.
2. Where
a person acting on the spur of the moment commits an assault in order to
prevent a crime of violence, he cannot be held liable merely because it
transpires that other alternative methods were in fact open to him provided his
primary motive was a reasonable and honest belief that his action was
necessary.
The force used should
not be excessive in the circumstances.
In
Marwa s/o Robi vs. R [ 1959] E.A 660,
the appellant speared the deceased to death after a cattle dispute. The
deceased claimed some cows and had gone to collect them when he was speared.
The deceased had carried a stick but no force was used against the appellant.
The appellant raised the defense of defence of property. Evidence was not clear
that the deceased was legitimate owner of the cows. In dismissing the appellants’ defense, Court had
this to say at pg. 663, “…it
must be a question of fact in each case whether the degree of force used in
defence of property which caused death was in the particular circumstances of
the case, justifiable or if not justifiable whether it was such as to amount
only to manslaughter or was so excessive as to constitute the offence of
murder. In the instant case, the trial judge stresses that the appellant was
well aware of the existence of a peaceful method of settling the dispute. All
the circumstances must be taken into account including this aspect of the
matter. As we see it, there was no case of an attempt to commit a forcible
crime. It was the culmination of a civil dispute between a father in law and
son in law. There is no suggestion that any violence was used or threatened to
the person of the appellant that he believed to be in any danger. No doubt in
driving off the cattle, the deceased was committing a trespass but the means
adopted by the appellant to resist the taking of the cattle seems to us to have
been utterly out of proportion to the tort which was being committed. The
appellant was not doubt entitled to use reasonable force to prevent the taking
of the cattle and if in good faith he had used more force than was reasonable
and had therefore killed the appellant no doubt the offense would only have
amounted to manslaughter, the force actually used however was a thrust in a
spear through the chest which was clearly calculated to kill. We can see no
distinction between such use of lethal weapon like a spear and the use of a
firearm. The weapon and its method of use leave no doubt that intent was to
kill and not merely prevent the removal of the cattle. There can be no
justification in law for deliberate homicide in these circumstances and we have
no doubt that subject to the question of provocation, the offence is murder.”
In
Ojepan Ignatius vs. Uganda, Criminal
Appeal, 25 of 1995, it was held that it is based on common sense that a man
who is attacked may defend himself. It is both good law and good sense that he
may do, but may only do what is reasonably necessary. But everything will
depend on the particular facts and circumstances. The appellant having been
drinking Malwa together with the late PC Bahirwe, PC Oumo and others for almost
7 hours in their police Barracks, he was incapable of forming the necessary
intent to constitute the offence of murder. Thus there was sufficient evidence
on record to support the trial Judges’ findings that the appellant was by
reason of intoxication incapable of forming the necessary intent to constitute
the offence of murder. Therefore, the appellant was rightly convicted of
manslaughter contrary to section 182 of the Penal Code Act.
There
is no justification where the force has been withdrawn.
In
Yusuf s/o Leso vs. R EACA 249, the
appellant was woken up by a noise as someone digging at a wall at the back of
his house, he seized a bill hook and seeing two people running away pursued
them. He chased one for 100 yards before catching him and killing him with a
bill hook. Court held that there was no ground for interfering with a
conviction for murder.
In
John Bisset v Uganda, the appellant
alleged that he and his wife were in their house at night when students threw
stones on the roof of the house. He got hold of his gun loaded it and went
outside. He shouted at students to stop throwing stones which they continued.
He then fired three shots in the direction of the dormitory to frighten away
the students. He then went into his car to report the matter to the police. He
alleged that students hit his car with stones. He took hold of his gun and
fired again in the direction of the students. Two shorts landed in the body of
the deceased of which he died a few hours after. He was charged and convicted
of manslaughter. Court held that he
had not been attacked when he fired the first shot. When he reloaded that gun,
there was absolutely no threat against him from anyone. The whole of his
conduct showed a man of the most truculent nature who would fight to kill
against any slight attack on him. In the course of judgment, presiding judge
observed that the English law on self-defense is the same as that of Uganda and
stated that, “if
a person against whom a forcible and violent felony is being attempted repels
force by force and in so doing kills the attacker, the killing is justified,
provided there was a reasonable necessity for the killing or an honest belief
based on reasonable grounds that it was necessary and the violence apprehended
from the attacker is really serious.”
4.2 MISTAKE OF FACT
Mistake
of fact means there is no mens rea.
In
H.M Advocate V Fraser (1874), a man
dreaming that he was struggling with a wild beast killed his baby. He was
discharged. Apart from a defense of automatism, He was laboring under a genuine
mistake of which assuming that it was true would not have been crime.
In
Chabijan vs. R 12 EACA 104, the
appellant deliberately killed his father and because he honestly held the
opinion that the father was at that moment killing the appellant’s son by super natural
means as surely as if he had seen him in the act of using a lethal weapon
against the son. If this belief was reasonable in law, the appellant could have
had a defence because he would have been acting under a mistake of fact in
defence of his own son but Court held that belief in witchcraft was not a
reasonable mistake in law. In R vs. Sultan Maginga, the deceased people, with a
woman were lying in a rice field after sexual intercourse. The sultan was going
to guard against wild pigs. He saw movements of grass and he called to ask
whether it was an animal or people. There was no reply and Sultan threw a spear
and killed a human being thinking it was a pig.
A
Murder charge was not sustained because it was a case of mistake of fact.
5.0
PROVOCATION
A
killing that would normally constitute murder done in the heat of passion
caused by sudden provocation and before there is time for the passion to cool
amounts to manslaughter under section
192 of the PCA. Provocation means any unlawful act or insult of such nature
as to be likely when done or offered to an ordinary person or in his presence
to the person within specified degree of relationship, as to deprive him of the
power of self-control and to cause him to commit an assault of the kind which
the person charged committed upon the person by whom the act or mission is
done.
It
is not for the accused to establish provocation as a defence. If there is any
evidence of provocation the court cannot convict him of murder unless satisfied
that the prosecution has proved beyond reasonable doubt either that there was
no provocation or if there was provocation that what was done in the assault
could not be recognized or what an ordinary person in the community who had
lost control of himself might have done. The reasonable retaliation is gauged
according to circumstances and community of the accused. It must be shown that
the killing was in the heat of passion and there was no time for it to cool.
The law in this area has just been restated by the Court of Appeal in the case of Kato v. Uganda [2002]1E. A 101.
In
R vs. Hope 14 EACA 105, the
appellant killed a man under the honest belief that he was responsible for the
death of a relative. It was held that provocation was not available because the
appellant had held this belief for several days before the killing.
Provocation must be
sudden
R vs. Jezalani 14 EACA
70,
the husband /appellant knew of his wife’s misconduct and unfaithfulness with her
former husband. When the wife told the husband that she wanted to leave him for
her former husband, he killed her. The defence of provocation did not succeed
on a charge of murder because the alleged provocative act was not sudden.
Provocation should
consist of a wrongful act.
A
lawful act cannot amount to a legal provocation. The following acts have been
held wrongful acts which together with the other elements of defense may amount
to legal provocation; the homicide of the accused’s father, R vs. Wasonga 15 EACA, an attack on an accused’s wife, Matendekyera,
trespass to property, Marwas case and a verbal insult of a gross nature.
In R vs. Mwanyi EACA 40,
it was held that to use a panga in a negligent manner thereby causing harm to
the person struck may be wrongful act. For a wrongful act to constitute legal
provocation, it need not be more than a tortious one. As such it is sufficient
to constitute legal provocation if the person, struck honestly and reasonably
but mistakenly believes that he is the victim of the wrongful act and in that
belief kills the person who striked him.
Generally,
vulgar abuse or refusal of sexual intercourse is not sufficient provocation
unless contained with other circumstances. Accordingly, it is a question of
fact whether a vulgar abuse or refusal of sexual intercourse will provide a
defense on the charge of murder.
The
provocation must be such as to deprive an ordinary person, of the class to
which the accused belongs of his power of self-control. Again this is a
question of fact and the test of the reasonable man is so much applicable.
See
King V Lesban [ 1914] 3 KB 116 The
provocative act must be done in the presence of the accused.
See
Gaboyes case 16 EACA 140. The
appellant’s
half-brother, K, had been rendered unconscious by the blow delivered by the
deceased. The appellant asked K whose face was covered with blood who had
beaten him and K replied it was the deceased. The appellant thereupon went to
the deceased’s
hut and delivered on his head a fatal blow fracturing his skull. It was held
that although the sight of his brother’s bleeding must have angered the
appellant; there was no provocation according to section 202 of the TZ Penal
Code Act as the wrongful act was not done in the presence of the appellant.
The provocative act
done in the presence of the accused will be a provocative act when it is done
either towards the accused or towards a person to whom the accused stands in
specified relationship including master and servant relationship.
The retaliation must bear a reasonable relationship to the provocation. In Obielo vs. R 16 EACA 139, the appellant
killed her former mistress by inflicting four blows on her head with a panga.
The woman who was suspected by the appellant of having made of a considerable
sum of money had slapped him and spat at him. It was held that the appellant
was liable for murder as his mode of resentment was out of relation to the
provocation.
It has also been held
that an accused is not deprived of the defense of provocation if when provoked
by A, he mistakenly or accidentally kills B in attacking A.
See
Nyanya vs. R 23 EACA 593 and R vs.
Alayina [ 1957] R&N 536, where the accused went after dark in search of
her husband. She found him under blanket with a young girl. The accused
immediately attacked the girl and in the course of the struggle in the darkness
of the hut at night, the girl’s
grandmother who was also in the hut was fatally stabbed her. It was held that
there was provocation sufficient to reduce murder to manslaughter. Where an
accused is involved in a fight, the defense of both provocation and
self-defense may be open to him or her.
Legal provocation will
operate to reduce Murder to manslaughter even where there has been an intention
to kill. Provocation is only a defense to murder not to any other charge. In
the other charges, it may operate to mitigate sentence.
The test in provocation is whether an ordinary member of the accused community
would have been provoked in retaliation in the same manner as the accused did. R vs. Maziku 8 EACA 55, a watchman was
baited by a gang of young men who also called him a term of vulgar abuse. The
watch man who was an irritable old man then threw a spear at the youth killing
the deceased. The watch man was convicted of murder. On appeal, the Court said
that the test was not whether an irritable old man would have been deprived of
his self-control but rather an ordinary member of the watchman, class would
have been so deprived.
The provocative act
must be done in the presence of the accused and there must not be time for the
passion to cool.
In
Thuku vs. R [ 1966] E. A 496, the
appellant arrived home one night in a drunken state and found his step father
(deceased beating his mother) When the appellant tried to intervene, his step
father hit him twice with a stick and told the appellant not to interfere. The
appellant entered into the house and slept for a few hours until he was
awakened by the deceased calling him. Ongoing outside the house, the appellant
found his mother dead with a severe wound on the back of the head and the
deceased standing nearby. The appellant removed his mother’s body in the shed,
fetched a panga from the house and chased the deceased about 300 yards. The
appellant and the deceased then exchanged words which apparently made the
appellant angrier. Both men started walking back to where the body lay when the
appellant attacked the deceased with the panga and killed him.
The
Court of Appeal for E.A held;
1. The
events were so continuous as to make the acts of killing the mother so
proximate to the appellant as constructively to have been done in his presence.
2. In
considering whether there is time for passion to subside the degree of
provocation offered is a relevant factor.
3. In
the instant case, the appellant killed the deceased when he was still acting in
the heat of passion without regaining his self-control. Provocation therefore
reduced murder to manslaughter.
5.1WITCHCRAFT AS
PROVOCATION
In
Galikuwa VR 18 EACA 175, Court laid
down the rules inter alia relating to defense of provocation in witchcraft
cases.
- The act
causing death must be shown to be done in the heat of passion that is to
say in anger. Fear of immediate death is not sufficient.
- If the
facts establish that the deceased was performing some acts in the presence
of the accused which he believed and an ordinary member of his community
would generally believe was an act of witchcraft against him and the
accused was so angered as to be deprived of self-control, the defense of
grave and sudden provocation is open to the accused.
- Belief in
witchcraft per se does not constitute a circumstance of excuse of
mitigation for killing a person believed to be a witch or wizard where
there is no immediate provocative act.
- The
provocative act must amount to an offence under criminal law.
5. In
the Galikuwa case, a witchdoctor threatened the appellant with death unless he
paid him shs1000. Later the appellant being unable to pay the said sum killed
the witch doctor in an honest belief that he was saving his life from
witchcraft. It was held that this was murder. There was no immediate
provocative act. “A
mere threat to cause injury to heath or even death in the near future cannot be
considered as a physical provocative act”
An overt physical act
of witchcraft may amount to provocation.
In
R v Fabiano Kinene 8 EACA 96, the
appellants appealed from conviction of murder. The deceased had died from shock
resulting from the forcible in insertion into his bowel through the anus of
urine bananas by the appellant immediately they had caught him. Immediately they
had caught him crawling about naked in their compound. They believed the
deceased was a wizard who had caused the death with their relatives by
witchcraft and had caught him in the act as they thought of bewitching them and
therefore killed him in the way in which the older times was considered proper
for the killing of a wizard. Put the other way, the appellant believed that the
witch doctor had caused the death which many people/ relatives by witchcraft.
One night they found the witch doctor crawling naked in the compound and
believed to be in the act of bewitching themselves, they fell upon him and
killed him in a gruesome manner considered fitting for the death of the witch
doctor in olden days. The Convictions for murder substituted with manslaughter
because of the deceased’s
provocative acts.
The belief that the
person is presently causing the death of a relative by supernatural means is
not a reasonable one in law.
In
R vs. Kajuna 12 EACA 104, the
appellant killed his father in the honest belief that he was causing the death
of his child by witchcraft. He had set out on a long journey with the express
intention to kill his father. It was held that this was murder.
In
Rauben Bagamuhunda v Uganda, Criminal
Appeal No 2 of 1987, it was held that once he found as a fact that the
appellant had killed the deceased by burning he had tied him up and beaten him
very badly, the learned Ag. Judge could have convicted the accused of murder.
Whereas the appellant suspected the accused of having bewitched his brother to
death, that alone could not sustain the provocation. In any case the appellant
attacked the deceased long after the death of the appellant’s brother so that there
was no provocation within the meaning of the section of the Penal Code.
In
Victory Kigora vs. Republic, E.A.C.A
Crim Appeal 161-DSM-75 1977 LRT N.45, the appellant killed the deceased,
his father, by cutting the latter to death with a panga. The deceased was
reputed to be a wizard in the village. The appellant genuinely believed that
the deceased, by means of sorcery and witchcraft, had caused the deaths of the
deceased’s own father and those
of his sons and daughters. Not long before the killing, according to the
appellant, the deceased had caused the deaths of the deceased’s own father and those
of his sons ‘and
daughters. Because of his notoriety as a wizard and his evil deeds, the
deceased was sent out of the village. After sometime however, he managed to get
permission to return to the village. Not long after his return to the village,
the deceased met the appellant in a pombe shop and the deceased abused the
appellant. The appellant tried to avoid the deceased by leaving the pombe shop,
but the deceased followed the appellant and continued to abuse him. He told the
appellant that he was going to kill the appellant and the appellant’s wife in the same way
as he had killed the others, that as he was an old man he was not afraid of
death and since he had even killed his own father, he was sure he would
vanquish the appellant. The appellant said that he was so angered by the
torrent of abuse and words that he lost control of himself and in his passion
attacked and killed the deceased. It was held;
1. A
belief in witchcraft per se will not constitute circumstances of excuse or
mitigation when there is no provocative act.
2. A
provocative act is not confined to an act of witchcraft being practiced against
the appellant at the material time.
3. A
genuine belief by the appellant that the deceased had by witchcraft caused the
deaths of his relatives coupled by words an insults by the deceased against the
appellant in such circumstances as to cause any reasonable person of the
appellant’s
community and actually causes the appellant sudden and temporary loss of
self-control amount legal provocation.
4. When
it has been established that legal provocation exists, the fact that a number
of wounds have been inflicted does not prevent the offence from being one of
manslaughter
6.0
INFANTICIDE
Under S. 213 of the PCA,
where a woman any willful act or omission causes the death of her child being a
child under the age of 12 months but at the time of the act or omission the
balance of her mind was disturbed by reason of her not having fully recovered
from the effect of giving birth to the child or by reason of the effect of
lactation consequent upon the birth of the child, then, notwithstanding that
the circumstances were such that but for the provisions of this section the
offence would have amounted to murder, she commits the felony of infanticide
and may for such offence be dealt with and punished as if she had been guilty
of the offence of manslaughter of the child.
It
is only a woman who can be charged under the section or who can raise the
defense of infanticide and the child killed should be the child of that woman offender
and affected by the very circumstances in the section i.e. not having fully
recovered from the effect of giving birth or by reason of the effect of
lactation.
The standard of proof
in section 213 is not as high as that required for
insanity because the defense of insanity leads to acquittal whereas infanticide
has the effect of reducing the charge of murder to manslaughter. The burden of
proof of loss of mind is upon the offender. In R vs. Namayanja Vol. 20 EACA 204, the appellant an unmarried girl
of about 20 years was convicted of murder of her newly born child. The
appellant had never told her parents with whom she lived of the pregnancy and
neither did they know of it. On 5th February 1952 at about 5:30 p.m.
the father on going to the latrine heard a child crying in the pit under him.
He and his wife dug out the new born child still alive who died in hospital at
7:20 a.m. the following day. At her trial, the appellant alleged that she felt
unwell on 4th February and worse on the following day. About 4 p.m.
she went to the latrine. She did not know she was going to deliver and whether
she had extruded the child or not but that when she was told of the child in
the latrine, she realized that it was hers. It was held that where a newly born
child has been abandoned the issue of a homicidal intent is a matter of
inference but the inference must be one beyond any reasonable doubt before a
conviction of murder can be entered. The standard of proof required to show
disturbance of the balance of the mind can’t be so high as in the case of a defence
resting on insanity and taking into account the girl’s age, the fact that it
was her first baby, the fact that pregnancy was unknown by the parents, her act
of leaving the child without calling for help was due to panic fear and
despair. She was acquitted and set free.
In
R v Soanes [ 1948] ALL E.R 489, a
day or two after she had been discharged from the hospital where after a normal
confinement she had given birth to the child, the prisoner killed the baby by
fracturing the skull in two places and threw it into a canal. She had stayed in
hospital for a longer time than normally and indeed from first to last, there
was nothing to suggest that she was otherwise than normal and in possession of
all her faculties. At her trial she pleaded guilty to the lesser offence of
infanticide which the crown counsel accepted but which the judge refused on the
ground that there was no indication on the deposition that the circumstances
existed which must exist before a verdict of infanticide can be returned. It
was held that there was nothing disclosed on the deposition which would have
justified a reduction of the charge of murder to infanticide and accordingly
the appeal was refused, the Court holding that the judge rightly insisted on
murder.
7.0
MANSLAUGHTER
Under section 187 and
190 PCA, a person who by an unlawful act or omission,
causes the death of another person commits the felony of manslaughter and on
conviction is liable to be imprisoned for life meaning that imprisonment for
life is the maximum sentence available and therefore anything less than life
imprisonment may be imposed depending on the circumstances of the case. For the
purposes of manslaughter, unlawful omission is an omission amounting culpable
negligence to discharge a duty tending to the preservation of life or health
whether such omission is not accompanied by an intention to cause damage or
grievous harm. According to Smith and
Hogan, Criminal Law, manslaughter is a diverse crime, covering all unlawful
homicides which are not murder. A wide variety of types of homicide fall with
this category, but it is customary and useful to divide manslaughter into two
main groups which are designated “voluntary” and “involuntary” manslaughter
respectively. The distinction is that in voluntary manslaughter. D may have the
malice afore thought of murder, but the presence of some serious grade of
homicide, where these circumstances are present, and then D. may actually
intend to kill and do so in pursuance of that intention yet not be guilty of
murder. See AG vs. Ceylon Perera (1953)
1 ALLE R 73, Parker vs. R (1964) AC 1363, (1964) 2 AIAER 6441. Contrast with
Holmes vs. DPP (1946) AC 588 AT 598.
Ø At common law voluntary
manslaughter was confined to circumstances of provocation, but under the penal
code, it is voluntary manslaughter in circumstances of a suicide pact. See S.
195.
Ø Involuntary manslaughter includes
all varieties of unlawful homicides which are committed without malice afore
thought. There is a vague borderline between manslaughter and accidental death.
In
Andrews v DPP [1937] AC 76 at 581, [
1937] ALLER 552 Lord Atkins said:
“Of all crimes,
manslaughter appears to afford most difficulties of definition, for it concerns
homicide in so many and so varying conditions. The law recognizes murder on the
one hand based mainly, though not exclusively, on an intention to kill, and
manslaughter on the other hand, based mainly, though not exclusively on the
absence of intent to kill, but with the presence of an element of “unlawfulness “which is the elusive
factor.
This
“elusive factor” is obviously
difficult to define: but it would seem to comprise at least two, and perhaps
three, varieties of fault: -
- An
intention to do an act which, whether D knows it or not, is unlawful and
dangerous in the sense that it is likely to cause direct personal injury,
though not necessarily serious injury.
- Where D
does an act which creates an obvious and serious risk of causing a
personal injury to another.
•
Not giving thought to the possibility of
there being any such risk or
•
Having recognized that there was some
risk involved, going on to take it.
3. An
intention to do an act, or to omit to act where there is a duty to do so being
grossly negligent whether death or serious personal injury is caused.
Manslaughter is
generally distinguished from murder by the absence of malice afore thought.
Cases establish that killing will be unlawful amounting to manslaughter if-.
1. Foresee
as likely to cause death or grievous bodily harm.
- There is an
intention or negligent omission to perform a duty recognized by the law of
homicide.
- There is
criminal negligence.
It is manslaughter
where death results from an unlawful act directed against the person and
involving a considerable risk of injury but where no reasonable man would
foresee as likely to cause death or grievous harm.
See
R vs Larkin 1943 Vol. 29 Cr. App 18 and R vs. Church (1965)2 WLR 1220, the
Court stressed that proof of mens rea is essential to manslaughter in regard to
dangerous acts against the person. Edmund J. said that for a verdict of
manslaughter to follow, the unlawful act must be such as all sober and
reasonable people would inevitably recognize must subject the other person to
at least the risk of some harm resulting there from although not serious harm.
It is manslaughter to
intentionally or negligently omit to perform a legal duty tending to the
preservation of life or health so that death results.
It is immaterial whether such an omission is or is not accompanied by an
intention to cause death or bodily harm. Indeed Chap. 19 of the PCA imposes
duties and responsibilities upon specified persons aimed at preservation of
life and health e.g. the responsibility is imposed on a person who has charge
of one to provide for necessities of life – S. 199.
A
duty is imposed on the head of family to provide all necessities of life to
children under 18 years (S.200) a duty is imposed on masters to provide for
students under 16 years the necessities (S.201), a duty is imposed on doctors
and other persons doing dangerous acts to exercise reasonable care and skill in
performing their duties so as to preserve life and health (S.203) and a duty is
imposed on persons in charge of dangerous things to ensure that they don’t cause danger.
In
R v Laximidas 1957 R & N 73, the
Court said that in a charge of manslaughter by omission, it is necessary for
the prosecution to prove three things.
1. That
the accused owed a duty to the deceased
2. That
the accused omitted to carry out that duty and that the omission amounted to
criminal negligence.
3. That
the omission caused the death of the deceased and for this purpose, it is
sufficient to prove that the omission hastened the death.
Such
persons who have a duty to preserve life of others include: -
1. Persons
having charge of another who is unable by reasons of age, sickness, unsoundness
of mind, detention or any other cause to withdraw from such charge.
2. Heads
of family having charge of children under 14 years
3. Employers
4. Medical
workers and similar persons in relation to their patients.
Persons in charge of dangerous things
have a duty to undertake reasonable care and precaution to avoid danger to
life, safety or health. Dangerous things may include machinery and animals.
For purposes of
manslaughter, the omission may take a variety of forms.
In
R vs. Instant (1893) 1Q B 450, it
took the form of denial of food and nursing during the last days of the life of
an elderly relative. However, where the evidence clearly shows an intention to
cause death the willful withholding of food would be murder.
The omission may be
failure to provide skilled medical care or negligent medical care.
In R vs. Watson (1959)
Q B 134, the child of the two accused suffered severe harm from
scalding and died three days later. The parent lived only three doors away from
the doctor’s
surgery but didn’t
send for the doctor until the child was dead. They were convicted of
manslaughter.
In
Tipezenji vs R [ 1960] R & N 504,
the appellant gave birth to a child which was accidentally precipitated into a
pit latrine. Although the appellant knew the baby was alive in the latrine, she
did nothing to save the child with the result that it died. It was held that
the accused’s
mother had a duty to try and save the life of a child and the failure to act
amounted to manslaughter.
It
was observed that if the mother had willfully abandoned the child with the
intention to kill it the charge might well have been murder although would be
infanticide if the balance of her mind was upset by the effects of child birth.
CAUSATION IN HOMICIDE-
Section 196 of the Act
This
section is relevant where the accused acts are not the only or immediate cause
of the death of the deceased. In a clear cut case of immediate killing by an
act of the accused, this section has no relevancy.
1. Under
section 196(a) a person is deemed to have caused death if he inflicts bodily
injury on another person in consequence of which that other person, undergoes
surgical or medical treatment which causes death. It is immaterial whether the
treatment was proper or mistaken, if it was employed in good faith with common
knowledge and skill.
In
R vs. Mwagambo 8 EACA 28, the
appellant inflicted two deep and serious wounds upon the deceased who died as a
result of sepsis from those wounds. The wounds had been stitched by a medical
dresser. The medical evidence was to the effect that the wounds should have
been drained instead of being stitched, but even if they had been drained,
there would still have been a risk of sepsis setting in. It was held that what
the dresser did wasn’t
unreasonable in the circumstances and didn’t relive the appellant of the
responsibility for causing death. However, the person inflicting the injury is
not responsible for the death if the treatment was not employed in good faith
or was employed without common knowledge or skill.
In
R vs. Jordan 1956 Criminal App cases 152,
the Court quashed a convicted of murder in a charge of causing death by
stabbing after taking the exceptional step of admitting fresh medical evidence
which went to show that death was not caused by the injury but negligent
medical treatment. The stab wound pierced the intestine but this was mainly
healed at the time of death. The immediate cause of death was pneumonia caused
by the administration of antibiotic to which the deceased was shown to be
intolerant and intravenous introduction of wholly abnormal quantities of
liquid. Both treatments were stated to be palpably wrong by medical witnesses.
2. A
person is responsible for the death of another if he inflicts bodily injury on
that other person which would not have caused death if the injured person had
submitted to proper surgical or medical treatment or had observed proper
precaution as to his mode of living.
In R
vs. Holland 1841, the deceased refused to surrender the injured finger in
time for amputation which caused lockjaw that resulted into his death. The
medical evidence was that if the amputation had been done early, the deceased
would probably have survived. The Court directed the Jury that, if the accused
had inflicted the wound son the finger, he was responsible for the death.
3. A
person is responsible for a homicide if by action or threatened violence, he
causes that other person to perform an act which causes the death of that other
person, such act being a means of avoiding such violence which in the
circumstances would appear natural to the person whose death is so caused.
In R
vs. Pitts 1842, the deceased threw himself into a river to avoid acts of intentional
violence against himself by the accused. The deceased drowned and the accused
was held guilty of murder.
4. A
person is responsible for a death if by any act or omission he hastens the
death of a person suffering from any disease or injury, which apart from such
acts or omission would have caused death.
In R
vs. Enyaju 12 EACA 42, During a tribal dance, T willfully gave the deceased
a violent poke on the head with the sharper end of his heavy dancing stick
piercing the skull and causing the deceased’s brain to protrude. The deceased fell
to the ground and almost immediately E, beat him violently on the other side of
the head fracturing the skull. The trial judge specifically found that the
deceased was alive at the time of E’s blow. Each injury would inevitably
have caused the deceased’s
death. Both T & E were convicted of murder.
The case of R vs. Okute 8 EACA 78, demonstrates the effect of successive but
separate beatings causing death. The deceased was first beaten up by four men
and made to dig up some stolen meat. Sometime later as the deceased, in a very
weak condition was being taken to the chief was assaulted by another man X. The
deceased died of shock resulting from the cumulative effect of his injuries. It
was held that the four men could not be responsible for causing the deceased’s death as on the
evidence, it was possible that injuries inflicted by them might not have caused
death but for the subsequent assault by X. There was no evidence of any common
intent between them and X but X was guilty of murder for he had with intent to
cause grievous harm assaulted one who was already in a very weak state. It was
no defence for X to say that the injuries that he inflicted upon the deceased
would not have caused death but for the prior assault. Generally, an assailant
must take his victim as he finds him.
5. A
person is deemed to have caused death of another if his act or omission would
not have caused death unless it had been accompanied by an act or omission of
the person killed or of other persons. This principle also includes a rule that
where A, voluntarily walks into an obvious situation of danger created by an
unlawful act of B, B is not responsible for A’s death, since here, the principle of
violent non fit injuria applies (voluntary assumption of risk).
In R
vs. Horsey 1862, the accused who had unlawfully set fire to a stockyard in
which the deceased was burnt to death was acquitted of murder because the jury
found that the deceased had entered the yard after it was set on fire.
HOWEVER,
in R
vs. Katunzi 13 EACA154, the accused set fire to a hut made of millet stalks
with only one door with the intention to cause death or grievous harm to the
occupants Z, K and four helpless children were in the hut at the time. Z with K’s help evacuated the
children. Then Z under the mistaken belief that one of the children was still
in the hut re-entered it and sustained burns from which died the next day.
Accused was convicted of murder.
ATTEMPT TO COMMIT
MURDER
In
Deo Metsnga Vs Uganda 1996 Volume 6 KALR97
Kania J held that the essential ingredients of offence of attempted murder
are that the assailant intended to maim or disfigure the complainant and that
the intention was to be carried out with the weapon and that the assailant
started to execute the said intention. So in this case there was a shooting at
the car and the accused was guilty of attempted murder.
In Teopista Tusungire
& Amor Vs Uganda HCCC 5/ 96, 1996 Volume 6 KALR 75
It was held that attempt to commit is an act done with intent to commit that
crime, and forming part of a series of acts which would constitute its actual commission if
it were not interrupted. Therefore, to support the charge of attempted murder
the prosecution must prove the full intent to murder, i.e. with malice aforethought
which intent to murder, while being prosecuted, is interrupted before the death
results. In the present case the complainant’s hands and legs were burnt by the
appellant who left her to go with the injuries. It cannot be said that the
appellants had formed the intention to kill the complainant but were
interrupted in their effort to do so. Therefore, the trial magistrate was right
to find that offence had not been proved.
In
order to convict of an attempt, it must be shown that the accused intended to
consummate the particular crime, or rather (since knowledge of the law is not
required) intended to procure the consequences that in law amounts to crime.
The requisite mens rea in attempt may be proved circumstantially by the
evidence of what the accused did. It may be that his acts are consonant only
with the intention of committing a crime, and if so they will supply evidence
of mens rea. Alternatively, the mens rea may be proved by a confession on the
part of the accused, or other direct statement of intention.
SEXUAL
OFFENCES
Key
among these offences includes Rape and
defilement.
Morality
is the belief or recognition that certain behaviors are either “good” or “bad” and
Our
morality plays a crucial role when formulating laws and policies.
The
law of the Penal Code Act is designed to protect public morality. The focus on
the offence is on the enforcement of opinions on particular aspects of sexual
morality. Some examples of the Offences of morality include incest, bestiality,
abortion, prostitution, rape, defilement, indecent assault, adultery,
elopement, bigamy among others.
1.0 RAPE:
Under section 123 of
the PCA, any person who has unlawful carnal knowledge of a
woman or girl without her consent or with her consent if the consent is
obtained by force, means of threat, intimidation of any kind or by fear of
bodily harm or by means of false representation as to the nature of the act or
in case of a married woman by impersonating her husband commits a felony termed
rape and liable to suffer death if convicted (S.124). In England, this offence
is now found in the Sexual Offence Act and in its present form codifies the law
as laid out in DPP vs. Morgan (1975)
1All E R 347.
Unreasonable
belief in consent is not a defence to a charge of rape. In England, the phrase “sexual intercourse” is used in place
of the phrase “carnal
knowledge”.
Neither
the phrase “carnal
knowledge” as
used in Uganda nor “sexual
intercourse” as
used in England has been defined for the purposes of this offence but the
Sexual Offences Act provides some guidance as to the meaning of the phrase
sexual intercourse.
“Where on trial of any
offence under this act, it is necessary to prove sexual intercourse (whether
natural or unnatural it shall not be necessary to prove the completion of the penetrative
intercourse by the emission of seed, but the intercourse shall be deemed
complete upon pron only”.
The common law rule is
that a husband cannot commit rape on his wife, as arising out of her marital
obligations, she is deemed to consent to intercourse with her husband so long
as they are not separated by an order of Court or a separation agreement.
In
R vs. Clark (1949)2 All E. R 448, it
was held that presentation of a petition for divorce but before hearing is not
enough. So carnal knowledge shall be unlawful where there has been judicial
separation or a decree nisi, or an injunction against molestation, an
undertaking to court not to molest or formal separation deed with a
non-cohabitation clause.
Though
a husband has a right to sexual intercourse, he is not entitled to use force or
violence in order to exercise that right. If a he wounds her, he might be
charged with wounding, causing bodily harm or common assault. See R vs. Miller
(1954)1Q B 282 and Shampil Singh (1962) A. C 188.
Carnal knowledge means
sexual intercourse and to prove rape it is necessary to prove penetration
however slight by the male organ into the vagina. There need be no emission of
semen. The absence of consent is the crux of the matter. The test is “was the act against her will?”
See R vs. Camplin 1845, Mulira vs. R 20 EACA 223.
Accordingly,
prosecution does not have to prove positive dissent but only prove that she did
not assent.
INGRIDIENTS OF RAPE
1. Lack
of consent.
2. There
must be sexual intercourse
3. There
must be force
LACK OF CONSENT
In
Fretcher case, accused had sex with
a 13-year-old girl with little intellect and was convicted for rape because
Court held that her age and intellect did not enable her give consent. It is
rape where the accused has sexual intercourse with a woman by impersonating the
husband. It is also rape for the accused by fraud deceives a woman to the
nature of the transaction.
See
R vs. Flattery (1877)2 Q B 410,
where accused was convicted where the woman submitted to intercourse with him
under the impression that he was performing a surgical operation. In R vs. Williams
(1923) K B 340, a singing master persuaded his pupil that sexual intercourse
would improve her singing voice. It is important that evidence in sex offences,
including rape, be collaborated. Such corroborated evidence may include medical
examination concerning nature of semen within the vagina, pubic hair found in
genital area or inside, eye witness, confession by the accused. See R vs. Kapanda Vol. 2 N R L R, the
appellant admitted to a mother and father that he had defiled their daughter
aged 7 years and offered them money, if they would drop the case. Appellant’s admission was held to
be corroboration of the girl’s
evidence.
2.0
DEFILEMENT (Section 129 of the Penal Code Act)
Defilement
is any sexual intercourse with a child under the age of eighteen years old
whether or not the child consents. Defilement under the Act constitutes
virginal penetration of a girl child with a male organ and it covers other acts
of a sexual nature such as anal sex and oral sex. It is a crime under the Penal
Code Act. Section 129(1) of the Penal Code Act further describes defilement, “Any person who
unlawfully has sexual intercourse with the girl under the age of eighteen years
commits an offence and is liable to suffer death.”
Defilement
under the Act constitutes virginal penetration of a girl child with a male
organ and it covers other acts of a sexual nature such as anal sex and oral
sex. Further, defilement of a child under the age of 14 years is more serious
than defilement of a child who is 14 years and above. It is also noted that
defilement of children under 18 years of age would remain a strict liability
offence.
The
essence of the law on defilement is the need to protect young girls from early
sexual activity. Proof that the girl is under eighteen years is thus essential
for a conviction of defilement. There is no need to prove the exact age of the
victim.
In
Uganda V Lwasa Sempijja Cr No 381/96.
It was held that in defilement, the prosecution need not to prove the exact age
of the victim, rather it must be proved that the girl was at the time of
intercourse under the age of eighteen years.
In
Katima John V Uganda Cr APP NO. 23/
1999. Katima was convicted of defilement, the prosecution case was that the
defilement occurred on 15th of December 1992, in her evidence, the
complainant/ victim stated that she was told by her father that she was born in
1977 and was therefore 15 years at the time of the assault. On the other hand,
her mother testified that the girl was born in 1979(and was therefore 13 years
at the relevant time). The doctor who examined the victim determined that she
was 14 years. He stated in cross examination that he did not have the machine
to examine her age but used his experience. On appeal, it was argued that there
was no evidence to prove that the complainant was below the age of 18.
The
Court of appeal held,
“That the prosecution
had proved beyond reasonable doubt that the victim was under 18 years of age.
The learned judge came to the right conclusion that the complainant was 18
years. Even if the court believed that the complainant was born either in 1979
or 1977, she was defiled in 1995 and whatever date is taken she was definitely
below 18 years. The learned trial judge observed the complainant while she was
giving evidence in court and formed his opinion about her age, which he was
entitled to do.”
On
a charge of defilement, proof of the age of the girl must be beyond reasonable
doubt. The parents may state the date of birth, or produce birth certificate if
any was extracted or a baptism card if it took place shortly after birth or by
reference to local events at the time of birth such as war, famine. Since 2007,
however, the Penal Code has been amended and introduced fundamental procedural
and substantive changes in the law of defilement. For example, a boy can also
be defiled, so authorities which emphasize sexual intercourse with a girl have
been affected by this amendment.
2.1
INGREDIENTS OF DEFILEMENT
The
essential ingredients for a successful prosecution of defilement include the
following;
1. Sexual
act (penetration).
2. The
victim must be below eighteen years of age.
3. The
accused is a culprit.
The
ingredients of defilement were further emphasized in the case below;
Kibale
vs. Uganda (1999) 1EA 148, In order to prove the commission
of the offence of defilement, three facts, had to be established. Firstly, that there had been
penetration of the female sex organ by the male sex organ. Secondly, that the female was below the age of 18 years, and thirdly, that it was a male person
who had engaged in the sexual intercourse
In
Nfutumikiza vs. Uganda (1999) 1EA 220,
it was held that the slightest penetration sufficed to constitute the offence
of defilement and it was not necessary to prove rupture of victim’s hymen. In this case
the medical evidence showing that the complainant vulva was inflamed and that
sperm was present in her vagina was sufficient to prove the necessary
penetration.
2.2` CONSENSUAL SEXUAL
ACTS BETWEEN CHILDREN
Before
the 2007 Penal Code amendment, where there was a consensual sexual intercourse
between a female and a male child, it was only the boy child who would be
penalized irrespective of age difference between the boy and a girl who engaged
in such an act. The law treated the boy as an offender and the girl as a
victim.
Where
consensual sex takes place between a female and a male adolescent, the current
law makes both partners equally offenders.
Where
defilement is committed by a male child and a female child on each other where
such child is not below 12 years of age, each offender shall be dealt with as
required by part x of the Children Act.
Under
the new amendment, a female adult who engages in a sexual act with a male
person under the age of 18 years would be guilty of defilement. Before the
amendment, penetrative sex of an adult female vagina with the penis of an
underage male constituted the lesser defence of indecent assault.
2.3
DEFILEMENT OF IDIOTS OR IMBECILES.
Under
Section 130 of the Penal Code Act,
it is an offence for a man to have sexual intercourse with a female idiot or imbecile
even with her consent. It must however be proved that the man knew the female
to be an idiot or imbecile at the time of the commission of the offence.
Presumably, the object of this provision is to try to prevent the procreation
of children inheriting their mother’s mental embarsility but by an anomaly,
there is nothing to prevent a male idiot having voluntary sexual intercourse
with the same female.
Please
Note That Lack of Knowledge of the Victim’s
Age Is No Defence.
Before
the 1990 amendment of the law, proof by the accused person that he reasonably
believed the girl to be above the prescribed age was a complete defence to a
charge of defilement, since the 1990 amendment, this is no longer a defence.
In
the case of Tumuhairwe Vincent V Uganda
Cr App NO 29 /97, the court of appeal held inter alia that the fact that an
accused did not know that the victim in a defilement case was under 18 years of
age is no defence.
3.0
INDECENT ASSAULT (Section 128 of the Penal Code Act)
Indecent
assault is an offence of aggravated assault in some common law-based
jurisdictions.
It
is characterized as sex crime and has significant overlap with offences
referred to as Sexual assault.
Any
person who has indecent contact with another or taken indecent liberties with a
person without his/her consent is guilty of indecent assault. It is a sex
crime.
According to Black’s Law Dictionary,
indecent assault is the crime of attacking someone in a way which involves
touching or threatening them sexually, but not forcing them to have sexual intercourse.
Indecent
assault has sexual connotation which may desire directly from the area of the
body of a girl to which the assault is directed, or it may give rise to sexual
connotation in the carrying an assault and anus of both male and female and the
breast of the female are the relevant areas the purpose or motive of appellant
in behaving in that way is relevant. The very intentional doing of the indecent
act is sufficient to put the matter before the jury but if the assault alleged
is one which objectively does unequivocally offer.
Sexual
connotation hem in order to be an indecent assault it must be accompanied by
some intention on the part of the assailant to obtain asexual gratification.
An
indecent assault is an assault accompanied by circumstances of indecency, thus
where a man indecently invites a small girl to touch his person, there is no
assault and therefore, no indecent assault. If, however such invitation was
accompanied by force or threats of force there is indecent assault.
It is no defence that a
girl under 18 years consented to the act of indecency though it could be a
defence where the victim is over 18 years.
Section
128(1) and (2) Provides that: -
1. Any
person who unlawfully and indecently assaults any woman or girl commits a
felony and is liable to imprisonment for fourteen years, with or without
corporal punishment.
2. It
shall be no defence to a charge for an indecent assault on a girl under the age
of eighteen years to prove that she consented to the act of indecency.
3. Any
person who intending to insult the modesty of any woman or girl, utters any
word, makes any sound or gestures or exhibits any object, intending that such
word or sound shall be heard, or that such gesture or object shall be seen by
such woman or girl, or intrudes upon the privacy of such woman or girl, commits
a misdemeanor and is liable to imprisonment for one year.
3.1 INGREDIENTS OF
INDECENT ASSAULT
The
essential ingredients that must be proved are;
1. The
act must be unlawful
2. Assaults
any woman or girl
3. That
the assault was without the consent of complainant.
NB. The slightest touch is sufficient to
amount to an assault and does not to be hostile or aggressive.
In
Uganda Vs Ojengo (crim. session case
No.009 of 2011) (2013) Prosecution has a burden of proving all ingredients
of the offence. If one unlawfully
and indecently assaults a boy under the age of eighteen years commits a felony
and is liable to imprisonment for fourteen years, with or without corporal
punishment. See section 147 of the Penal Code Act.
In
R V Tabassum (2000) three women had
agreed to remove their bras to allow the appellant to examine them because they
understood that he was medically qualified and was carrying out the procedure
in order to put together a medical database on the subject. The Court of Appeal
took view that on the facts there was consent to the nature of facts but not to
their quality, since they were not for a medical purpose. The appellants’ conviction for
sexual assault was therefore upheld.
3.2
DEFENCES.
A
defence should raise reasonable doubt.
Note:
It is no defence that a girl under 18yrs consented to the act of indecency.
Though it could be a defence where the victim is over 18yrs. see 128(1) (2)
Note:
Where a boy under 18 years is a victim, one is charged under Section 147 of the Penal Code Act.
In
Uganda V Venansio Bamutula [ 1979] HCB 4,
the accused was charged with indecent assault c/s 122(1) Penal Code. He pleaded
guilty and this plea was entered and the magistrate sentenced him to nine
months ‘imprisonment without
first entering a conviction. He had met the complainant and her sister on the
way. He put her down and then took off his trousers. Her sister raised an alarm
which was answered by a person who met him still struggling with her. It was
held that what the accused did, did not amount to indecent assault. Indecent
assault must be accompanied with circumstances of indecency to a person
assaulted. The mere fact that the accused person had no trousers on, while he
was straggling with the complainant, did not without more constitute indecent
assault. What he did amounted at best to preliminary steps taken towards
committing an indecent assault. Since this was a border line case its doubt was
to be resolved in favor of the accused.
In
DPP V Rogiers (1943) 2 ALLER834, Lord Gordard
stated, before you can find a man guilty of an indecent assault, you have to
find that he was guilty of an assault, you have to find out that he was guilty
of an assault, for an indecent assault is an assault.
In
R V Cott (1987) 1 ALLER140, the court
held that the essential element of an indecent assault was that the accused
knew or was reckless about the existence of circumstances which were indecent
in the sense of contravening standards of decent behavior in relation to sexual
modesty or privacy. This means that in order for an accused to be convicted of
indecent assault, the prosecution must prove that an act which is accompanied
by utterances, suggesting of sexual intercourse.
4.0
INCEST (Section 149 of the Penal Code Act)
Ø Incest
are sexual relations between people classified as being too closely related to
marry each other. Any person who has sexual intercourse with another with whom
to his or her knowledge any relationship as listed under section 149 (1) PCA
commits the offence of incest.
Ø It
is a crime of having sexual intercourse with a parent, child, sibling or
grandchild.
Ø It
is also a sexual activity between family members or close relatives.
Ø This
typically includes sexual activities between people in consanguineous relations
(blood relations) and sentences those related affinity step family, those
related by adoption or marriage or members of the clan line age.
4.1 INGREDIENTS OF
INCEST.
Ø Sexual
intercourse with a person within the degree of consanguinity where marriage is
prohibited.
Ø Knowingly
having sexual intercourse with persons without the following degrees of
consanguinity see S.149 (P.C.A).
NOTE:
Consent is not a defence.
-
It is immaterial that whether the
intercourse was with or without the consent of such female.
-
The age of a victim is not considered as
an element of the offence of incest.
4.2 DEFENCES TO INCEST.
1. Lack
of knowledge of the relationship.
2. Alibi
3. Total
denial
4. Mistaken
identity.
Prosecution
must therefore prove sexual intercourse took place. The primary object of the
law of incest may be blood relations through conception of chain. It is no
defence where persons act in ignorance of their relationship. It is no defence
that intercourse took place with the consent of the other person. The
references to brother and sister include half rather and half-sister but not
step siblings. In the case of step siblings, no blood is shared. Section 150 of the PCA.
In
the case of Barugahara V Uganda [ 1969]
E.A 73, the appellant was convicted of incest with his daughter under
section 144 of the Penal Code Act. He had allowed with a woman of 17 years
before the alleged offence but they never married. The woman left his home
while pregnant when his daughter was 12 years old, she came to live with him
and eventually impregnated the daughter. It was held that the offence of incest
is committed even if the relationship is not traced. The evidence of the female
witness liable to be prosecuted for incest requires to be collaborated. This
holding is in line with the need for collaboration in sexual offences.
NOTE
The
existence of lawful wed lock between parents in the case of half siblings is
irrelevant for purposes of the test of relationship i.e. it is irrelevant that
H & J were either lawful wedlock and later had a son S who later had sexual
intercourse with Z, the daughter of K& J after J and K lawfully wedded for
one to be prosecuted for incest, consent of the DPP must first be obtained.
Refer Sec (5) of the PCA
5.0.
PROSTITUTION (Section 138 of the PCA)
Black’s law Dictionary
defines prostitution as the act of practice engaging in sexual activities for
money or its equivalent, that is to say commercialized sex. Under Section 138
of the Penal Code Act, a prostitute is defined as a person who in public or
elsewhere regularly or habitually holds himself or herself out as available for
sexual intercourse’s
or for other sexual verifications for monitoring or other material gains.
Prostitution
is the act of offering the body with promiscuous or indiscriminate sexual
intercourse. From the wording of the PCA, a prostitute may be male or female.
Section 139 0f the act creates the offence of prostitution. If anyone
practicing or engaging in prostitution constructed in accordance with section
138.
Also
the business is surrounded by other criminal prohibitions e.g. under section
136 (1), those that knowingly live on the earnings of prostitution and that
solicit if immoral purposes under section 137, those that keep a house or rooms
or any place of any kind is prostitution.
This
is the practice or occupation of engaging in sexual actively with someone in
exchange for payment either money, good services or some other benefit upon by
transacting parties.
Read
Katuria Vs Republic [ 1969] EA 16 The
appellant was a prostitute living on her own earnings and was convicted on a
charge of knowingly living on the earnings of a prostitute contrary to section
154 of the Kenyan Penal Code. It was held under inter alia that the section
does not intend to make every prostitute living on her own earnings guilty of an
offence with in the
section.
It focused on punishing people other than prostitutes who live on her earnings
of prostitution.
5.1 INGREDIENTS OF
PROSTITUTION
1. There
must be sexual intercourse.
2. There
must be willingness.
3. There
must be a consideration in return of the sexual act
4.
6.0 ELOPEMENT (Section
127 PCA)
This
literally means to run away and not to come back to the point of origin. This
is an act of running away secretly with the intent to get married.
An
act of a wife who voluntarily deserts her husband to co-habit with another man.
To abandon one’s husband and run with a lover. To run away secretly for the
purpose of getting married of often without parental consent.
Sec
127 (1) prohibits a man from eloping with a married woman
or enticing such action.
Sec
127 (2) prohibits a woman from eloping with a married man
or enticing such action.
Under
Sec 127 (3), either man or woman that agrees so to
a law with the other person 9 being married to another) commits the offence. It
is impossible to elope with a woman who has left her husband.
In
Uganda versus olungu (1972) EA 136 High Court of Uganda
The woman had run away from her husband
at least four years prior to the alleged offence and it appears she has had
permanently left the matrimonial home. So the accused would not have caused the
offence of elopement. Also the offence is only once the person the accused is
alleged to run away with married. The offence is committed if a person takes a
married person away from his or her spouse in order to live in adultery.
She
was convicted of elopement.
On
Revision: -
Held:
it was impossible to elope with a woman who has already left her husband.
In
Uganda vs Solomon and Another [ 1971] EA 46 High Court of Uganda. The
first respondent (a man) was charged with eloping with a married woman not his
wife and the second respondent (a woman) was charged with eloping with a person
who was not her husband. The magistrate acquitted the respondent on the ground
that the acts constituting elopement are not defined in the Penal Code Act and
that therefore the offence is not defined within Article 15(8) of the
Constitution.
Ingredients
The
prosecution in an elopement case has to prove: -
1. That
one or both of the parties was married and living with his/her husband/wife.
2. That
the accused knew the marital situation.
3. Knowledge
of the other party is married.
In
Uganda vs Damulira [ 1976] HCB 11High
Court The two accused persons were charged with elopement under section
121A (1) and
(3).
The second accused a married woman had run away from her husband and after 10
months she was found and arrested in a house used by the first accused as a
shop. She denied having lived with the first accused as husband and wife. Held:
in order to prove elopement, it must be shown that in case of a married woman
the man charged had the necessary intention to make her abandon her husband and
live with him as husband and wife. He must therefore know that at the time he
took her away she was in fact married to another man and that the marriage has
not been legally dissolved.
Uganda Versus
Rukwandura [ 1973] EA 574 High Court of Uganda
The High Court held knowledge that the
other party is married is essential of the offence of elopement.
In
Uganda vs Francis Ogema HC Cr. Revision 436 of 1970
The
two accused, a man and a woman, were charged with elopement contrary to Section
121A (1) and (2) of the Penal Code. They were both convicted. The charge sheet
had one statement of offence and two sets of particulars one relating to the
man and the other relating to the woman.
Held on revision:
1. There
should have been two separate counts each with a statement of offence and
particulars of the offence. The particulars of the offence relating to the man
which alleged that Ogema ‘being
a married man eloped with Sophia not being your wife were defective. The
particulars of the offence under Section 121A (1) must state that the woman is
married, otherwise no offence will be revealed against the male accused.
2. When
the accused denies an offence, the prosecution must adduce evidence to prove
every ingredient of the offence. In this case no evidence whatsoever was led by
the prosecution to show that the male accused was a married man.
DEFENCES
1. Honest
and genuine belief on reasonable grounds that the person with whom he or she
elopes is not married.
2. If
the woman has left her husband.
In Uganda Versus Ojok
and Another [ 1973] EA489 High Court
The
woman was not living with her husband at the time of the alleged offence,
having left him for some time. The bride price had not been returned for her
husband and she had moved in with her uncle. On revision it was held that it
was impossible to elope with a woman who had already left her husband.
7.0 ADULTERY (Section 145 of the
PCA)
Adultery
is the voluntary sexual inter course between a married person who is not their
spouse.
It
is extramarital sex that is considered objectionable on social, religious,
moral or legal grounds.
Please
remember God’s
Commandment which forbids adultery in the Bible.
Exodus
20:14 “You shall not commit
adultery”
Under Section 154(1),
any man who has: -
1. sexual
intercourse with a married woman
2. such
man is not her husband commits adultery
Essentially,
the import of Section 154 of the PCA is that both man a married woman not being
married to each other found in the act of sexual intercourse can be charged on
the same charge sheet in different counts but on the same offence i.e. adultery.
Under Section 154(1), there is a provision for compensation to be paid to the
aggrieved party (presumably the husband of the adulteress) no such provisions
exist for compensating the wife of the adultery under section 154 (2)
Arguably,
because of the difficulty in providing the act of intercourse, such persons may
be charged with elopement as it is easier to prove the act of running away
together.
Under Section 154(1) of the PCA, is it a
defence for a male accused to state, he did not know that the female ha had
sexual intercourse with was married.
Refer
to Uganda Versus Nicholas and others
(1966) EA 345 & Uganda Versus Said WaiguValensa (19770 HCB 296.
Is
the form of marriage contracted by a female or adulterer relevant?
Read Alai versus Uganda (19510 E. A 596
PLEASE
NOTE ADULTERY IS NO LONGER A LAW IN UGANDA
On
24/6/2007. The Uganda Constitutional Court is the case of
FIDA
UGANDA AND OTHERS VERSUS ATTORNEY GENERAL. That made
adultery criminal for women but not men.
This
law was scrapped from the Penal Code Act, in a Land mark ruling where the Court
unanimously said. Section 154 of the PCA which criminalized adultery was unconstitutional
because it treated men and women differently.
The
adultery law prescribed different penalties and remedies for men and women. It
prescribed that only married men could be aggrieved in case of adultery.
An
aggrieved husband was compensated with Shs 600 which later went up to Shs
1200/=
But
the aggrieved wife got nothing.
Also
the wives, now do not have to cute different friends to seek Divorce
previously, wives had to prove cruelty and dissertation in addition to adultery
to secure a divorce while husbands only had to prove adultery.
Therefore,
Adultery is no longer a criminal offence in Uganda having been scrapped off the
P.C.A by the Constitutional Court in the Land mark ruling of FIDA (U) and
others Versus Attorney General.
The
Constitutional Law recommended for an Amendment of the Adultery Law in the
Penal Code Act.
8.0
BIGAMY (Section 153 of the Penal Code Act)
This is an act of entering into a
marriage with one person while still legally married to another.
It
is a condition of having two wives or two husbands at the same time. According
to the Osborn’s
Law Dictionary, 11th edition bigamy is an offence committed by any
person who, being validly married and while the marriage subsists marries any
other person during the life of the existing spouse or Is an offence of marring
someone while already married to another.
THE
ELEMENTS OF BIGAMY INCLUDE;
1. having
a husband or wife leaving (first marriage)
2. Goes
through a ceremony of Marriage (the second ceremony). The first marriage has
been declared said by a court of complete jurisdiction.
3. The
husband or wife of the first marriage at the time of the second ceremony has
been continually absent from such a person for seven years and has not been
heard of by such person as being alive with in that time.
The
law of bigamy is designed to uphold the sanctity of monogamous marriage. By its
very nature, it cannot apply to polygamous or potentially polygamous marriages
e.g. Islamic and potentially customary marriages.
Prosecutions
must prove, the accused went through a valid ceremony of marriage with the
first spouse e.g. By production of a marriage certificate or testimony of one
present during the ceremony. Prosecution must also prove that the accused,
first spouse was alive at the time of a second ceremony.
The
second ceremony must be one known to as recognized by the law or capable of
producing a valid marriage e.g. by a licensed officiator or licensed venue.
The
second marriage must be valid by reason of its taking place during the life of
the first spouse. This emphasizes that bigamy can only be committed by persons
in polygamous marriages.
8.1 DEFENCES TO BIGAMY
INCLUDE
1. The
first marriage has been declared void by a court e.g.
2. The
former marriage was between the prohibited degrees of relationships.
3. The
first spouse has been completely absent from the accused at least seven years
at the time of the second ceremony and the accused has not heard from the first
spouse as being alive within that period.
In
R Versus Tolson (1889)23 QBD 168,
six and a half years after the accused’s brother in law told her that her
husband had drowned at sea, the accused married another man, twelve months into
her second marriage, her first purportedly dead husband returned from America.
It
was held, that she was not guilty of bigamy even though her husband had not
been absent for seven years at the time she remarried as she honestly and
reasonably believed him to be dead.
The
other party to a bigamous marriage who knows of the subsistence of the bigamous
former marriage may be charged as a principle offender to bigamy.
Please
note:
That
the offence of bigamy does not apply to customary marriage in Uganda and
marriages under Islamic marriages because they are potentially polygamous.
Section
126 of the Penal Code Act provides that
a) Any
person whether male or female with intent to marry or be married to or have
sexual intercourse with another person or cause that person to marry be married
or have sexual intercourse takes that person away or detains him or her against
his or her will or,
b) Unlawfully
takes another person under the age of 18 years out of the custody of ant of the
parents or of any other person having lawful care or charge over that person,
commits an offence and is liable for imprisonment for seven years.
INGRIDIENTS OF
ABDUCTION
1. The
act must be unlawful
2. The
person must have been forcefully or persuasively done
3. The
abductee must have been taken in the lawful custody of his or her parents or
one having lawful care or charge over that person.
9.1 DEFENCES TO
ABDUCTION
1. If
the parent consented to the move, abduction cannot arise.
2. If
a child has been settled in his new environment for twelve months.
3. There
is a defence if the parent seeking the return of the child has not been
exercising so – called
“rights of custody” before the
removal / retention. This is often when a parent has had no active, meaningful
involvement in the child’s
life before the abduction.
10.0
KIDNAP
A person is guilty of a
felony kidnap who: Conveys any person from the country (239 PCA)
Takes
any person from lawful guardianship (section 240)
In
the first instance, kidnapping means conveying any person beyond the boundaries
of the country without the consent of the person or of one legally authorized
to consent on behalf of that person.
In
the second instance, kidnapping i.e. the taking or enticing of ant body under
14 years or any girl under sixteen years out of the keeping of the lawful
guardian without the guardian’s
consent.
The
consent of the convict in kidnap and abduction must be an intelligent consent,
the result of a deliberate and free act of mind fully cognizant of the course
of proceeding. R V Trolley 2 N.R .L.Ru.
Kidnapping is lawful guardianship is an
offence is strict liability i.e. where the actus reus of the offence has been prove,
the accused is guilty without proof of mens rea or guilty knowledge. Ignorance
of the victims age
is consequently no defense. On a charge of kidnapping or detailing with intent
to murder under section 243, the intent must be strictly proved.
It
has also been held at the confinement must be wrongful and secret
Uganda versus Kadiru
Matovu and Anor (1983) HCB 27
NB
Wrongful confinement is a misdemenour but wrongful confinement of an abducted
person is a felony attracting the same punishment as one at actually kidnapped
or abducted the victim.
Abduction
and kidnap are often used interchangeably but there is a subtle difference
between the two.
Abduction
involves the criminal leading away of someone from his or her home, loved ones
or other or other situation by persuasion or fraud or sometimes through
violence. It is a commonly means of disrupting a family relationship, such as a
parent taking a child away from the other parent in a divorce dispute.
Even
if the child goes away willingly with that parent, it is still abduction
because it is unlawful interference between a child and the other parent.
Kidnap
may have all the elements of abduction but in no case does the victim leave
willingly.
There
is force used in kidnap to take away the person without his or her will. This
can be for purposes of seeking ransom or other financial gain, political
motivations.
In
abduction a stranger may lure a child away perhaps convincing the child to get
into a car, or go to a stranger’s
home without the parents’
knowledge or consent.
In
such a case the child went willingly at least initially.
Further,
in abduction more often than not, the victim is familiar with the abduction.
They
could be negation unlike kidnap.
Kidnapping
is more about making profit or fulfilling some sort of objective.
10.1DEFENCES TO
KIDNAPPING
Possible
defences to kidnapping charge include but not limited to;
Duress,
Necessity, Self defence, if one is a parent to a child, if not in the
contravention of a court order regarding to a child, you are acting with the
consent of the victim’s
parents if the parent is a child, Total denial, Insanity, Consent, Ignorance,
Mistaken identity, Necessity.
10.2 KIDNAP WITH INTENT
TO MURDER
Section
239 up to 243 of the Penal Code Act
Mukombe Moses Bulo v
Uganda, Criminal Appeal No. 12 of 1995, the appellant was
convicted by the High Court of the offence of kidnapping Sandra Bulo, a baby
with intent to murder contrary to section 235(1) and ()2) of the penal code,
and sentenced to fourteen years’ imprisonment. He appealed against both the
conviction and sentence.
The
fact as found by the trail judge were that the appellant was a cousin brother
of the complainant, Nakazi Harriet (PW3). The appellant had an affair with the
complainant as a result of which she gave birth to a baby girl named Sandra
Bulo. The appellant rented a house for the complainant at Namumera village
where she stayed with the child for one and a half years while the appellant
was maintaining them. After that period, the complainant returned to her home
in Bugerere with the child. In May 1992, the child fell sick and the
complainant took her to the appellant’s home to seek for money for her
treatment. The appellant assaulted her and took away the child Sandra from her.
The complainant went and reported the matter to the R.C.I Chairman who summoned
the appellant but the latter refused to go. After the R.C.I Chairman had gone
to the appellant’s
home to inquire about the matter, he gave the complainant a letter referring
her to Mukono Police Post. When the complainant returned home she found her
father sick at Kayunga Hospital and she attended to him for five months. Later
she sent her brother Moses Nkuki (PW6) to the appellant’s home to collect the
child to attend the last funeral rites of her grandfather. The appellant
refused to hand over the child saying that the complainant was a fool to
release the child to him.
After
five months, the complainant went to the appellant’s home but did not find
the child there. In January 1993, the appellant told the complainant that he
had taken the child to Nsambya Sanyu Babies Home with the child’s photograph. She was told
that the child had never been taken there. She was referred to the Mukono
Probation Officer who summoned the appellant to his office. The appellant came
and claimed that he had given the child to the complainant, which the
complainant denied. The probation officer referred the matter to police. The
appellant was arrested for failing to five a satisfactory explanation as the
whereabouts of the child Sandra. He was charged and subsequently tried for the
offence of kidnapping with intent to murder.
It
was held: -
1. It
is now well established that the offence of kidnapping with intent to murder
comprises of two key elements, namely the prohibited conduct of kidnapping on
taking away by force or fraud and the specific intent to cause the victim to be
murdered. [ See Ibrahim Bilal Vs. Uganda Criminal Appeal No.5 of 1983 (UCA)]
2. As
regards the second element of the offence, namely the specific intent, it is
also well established that on a charge of kidnapping with intent to murder, it
is necessary for the prosecution to establish that at the time of kidnapping
there was a contemporaneous intent that the victim be murdered or be put in
danger of being murdered. [ See Godfrey
Tinkamirwa& Another Vs. Cr. App. No.5/88 (sc) (1988 –
1990) H.C.B.5]
3. That
intention can be presumed if the victim has not been seen or heard of within a
period of six months or more. This presumption is provided for under section
235 (2) of the penal code Act.
4. Once
it is proved that the appellant forcefully took away the child from her mother,
and the child has not been seen or heard of for six months or more, then the
appellant is presumed to have had the contemporaneous intent the child would be
murdered or be put in danger of being murdered.
5. Section
235 (2) of the penal code casts a burden on the appellant to prove that he did
not have the contemporaneous intent that the child would be murdered or be put
in danger of being murdered. The appellant failed to rebut the presumption. On
the contrary there was sufficient evidence to prove that the appellant had
guilty knowledge of what happened to the child. This can be evidenced by the
fact the appellant lied that he had taken the child to Nsambya Sanyu Babies
Home, and when the child was not found there he claimed that the mother had
taken away the child from his home after a few months.
10.3 DEFINITION OF
CONFINEMENT
Confinement
is a strict form of imprisonment.
It
is a state of being freed to prison or another place which one cannot leave.
In
R V Mshangama nyal.r.sl
A
15-year-old was kidnapped and drugged to a brothel in which she was indecently
assaulted. The room in which she was locked was secured on the outside. There
was however a window at the girl could have escaped through but though was nailed
and did not try to use it. The judge held inter alia that through she may have
tried to escape out of the window, she was too frightened to attempt it. The
entire restraint upon her will constituted the imprisonment.
Uganda
V Yonasani Balinda (1988- 90) HCB 3
Hajji
Muhamed Sebikade versus Uganda (1986) HCB 6
Grade
Kimeze & Anor versus Uganda (1983) HCB 9
11.0
ABORTION (Section 141of the PCA)
This
is the deliberate termination of a human pregnancy most performed during the
first 28 weeks.
It
is a spontaneous expulsion of a human fetus during the first 12 weeks of
gestation. This could be induced.
It
is also the ending of a pregnancy by removing a fetus or embryo before it can
survive outside the uterus.
Under
Article 22 (2) of the Constitution it’s provided that “No person has the right
to terminate the life of an unborn child except may be authorized by law”
DEFENCES OF ABORTION
1. If
an act is performed to save a life of a pregnant woman
2. If
the victim was raped
3. If
the rape was under circumstances of incest.
4. Fetal
impairment
5. If
an act was performed to preserve the mental health of a woman
In Rex
V Bourne, a physician was acquitted of the offence of performing an
abortion in the case of a woman who had been raped. The court ruled that the abortion
was lawful because it had been performed to prevent the woman from becoming “a physical and mental wreck Thus setting a
precedent for future abortion cases performed on the grounds of preserving the
pregnant woman’s
physical and mental health.
11.1
UNNATURAL OFFENCES (SEC 145 OF THE PENAL CODE ACT)
Unnatural
offences refer to having voluntary canal intercourse against the order of
nature with any man or woman or animals.
Under
section 145 of the Penal Code Act provides that: Any person who:
1. Has
canal knowledge of any person against the order of nature.
2. Has
canal knowledge of an animal
3. Permits
a male person to have carnal Knowledge of him or her against the order of
nature, commits an offence and is liable to imprisonment for life.
It
is an offence for a person to have canal knowledge of another against the order
of nature i.e. man upon man or woman upon woman.
Section
145 of the Penal Code Act (b) criminalizes bestiality (having sexual
intercourse with an animal). It covers intercourse per annum or per vaginam by
a man or woman with an animal. Section 145 (a) and (c) make annual sex between
males as well as anal sex between a male and a female criminal. It thus
prohibits homosexuality. According to Smith and Hogan (1992:476)
It
must be proved therefore;
1. That
one had canal knowledge
2. Such
was against the order of nature
3. It
is also an offence for one to have canal knowledge of an animal, this is called
bestiality under section 145(b)
4. Further,
any one that permits another to have canal knowledge of him or her against the
order in nature is guilty. Such a person is as guilty as the one under section
145 (a) and can be charged in the like manner of co- adultery on the same
charge sheets under different accounts.
5. Penetration.
6. Mens
Rea
Note:
Penetration is sufficient to constitute the canal intercourse necessary to the
offence.
·
Voluntarily”: This requires that
the unnatural offence must be accompanied by intention.
·
“has
carnal intercourse”:
This requires that the act is committed (actusreus); mere intention is not
sufficient.
·
“Against
the order of nature”:
This part is subject to various interpretations by the court. The Court in
Khanu vs Emperor laid down that, “the natural object of sexual intercourse
is that there should be the possibility of conception of human beings.’ The court then
defined sexual intercourse as “the
temporary visitation of one organism by a member of the other organism, for
certain clearly defined and limited objects”. Thus any sexual activity the natural
object of which is not conception is against the order of nature. This section
was read by courts to criminalize bestiality, child sexual abuse and consensual
homosexual intercourse. The section as interpreted by the courts from time to
time initially punished only anal sex as unnatural. Slowly cases such as Khanu
vs Emperor also held oral sex as unnatural. The present
interpretations
have even covered penile penetration of other artificial orifices like between
the thighs or folded palms as unnatural.
Any
person who attempts to commit any of the offences specified in section 145 of
the penal code Act commits a felony and is liable to imprisonment for seven
years.
11.2 INDECENT PRACTICES
(Section 148 of the Penal Code Act)
Any
person who, whether in public or private, commits any act of gross indecency
with another person or procures another person to commit any act of gross
indecency with him or her or attempts to procure the commission of any such act
by any person with himself or herself or with another person, whether in public
or private, commits an offence and is liable to imprisonment for seven years.
Read Section 148 of the Penal Code Act.
This
is the offending against generally accepted standards of propriety or good
taste, improper, vulgar, indecent jokes, indecent language, indecent behavior
Not decent, unbecoming or unseemly indecent haste.
Indecent
exposure is regarded as a form of breach of the peace, shameless indecency or
lewd practice.
A
crime of indecency exposure will often be proved where there has been a sexual
act whereby the accused derives sexual gratification but the offence is not
confined to such behavior
1.1
TREASON
Treason
is the offence of attempting by overt acts to over throw the Government or the
State which the offender owes allegiance or to kill or personally injure the
sovereign or sovereign’s
family.
It
is also the Crime of trying or helping to over throw the Government of the
criminal’s own country or cause
its defeat.
According
to the Black’s
Law Dictionary, Treason is the offence of attempting to over throw the
Government of the State to which the offender owes allegiance or of betraying
the State into the hands of the foreign power.
Under,
Section 23 PCA Any person who levies was against Uganda or unlawfully attempts
to or causes harm or death of the president or contrives any plot to over throw
the government as by law established commits an offence of treason and is
liable to suffer death.
Any
person that aids or abets the commission of the above act or becomes an access
organization after the acts commits the offence as well.
The
gist of treason in Uganda is the overt manifestation of an intention to
overturn the legally established government.
INGRIDIENTS OF THE
OFFENCE OF TREASON
1. There
must be a plot
2. There
must be an intention to plot
3. There
must be manifestation of such an intention by an utterance or an overt Act as
per Section 32 of the Penal Code Act.
These ingredients were discussed in case
of Uganda Versus Hamis and Moses Ali where
it was stated that the case persons organized the plot to over throw the
Government by use of firearms. The overt Acts were meetings held in different
cases in Kampala.
Investing
and inventing Uganda with an armed force coupled with an overt act or utterance
or publishing equally leads to liability under section 23(2) of the Penal Code
Act.
Similarly,
any inducement of another to commit an act of mutiny or any treacherous or
mutinous act leads to liability under section 23(3) of the Penal Code Act.
It
is a felony for a person knowing at another intends to commit treason to fail
to report the same to the authorities with all reasonable dispatch. The offence
is known as misprision of treason (Sec 25 of the PCA)
In
Uganda V Okot & 12 others (Criminal Session Case No. 0477 of 2010) [ 2012] UGHC
97 (30 MAY 2012)
MISPRISON OF TREASON
Misprison
of treason is also an offence Under Sec 25 of the Penal Code Act. This Section
provides that it is an offence for a person knowing that someone intends to
commit treason to fail to report that person to the authorities as the earlier
time and such a person would be able to be imprisoned for life if convicted.
Special
rules apply to the law of treason and imprisonment of treason that no person
can be held for these offences unless the prosecution commenced within five years
after the offence is committed. It should be noted this time does not apply to
Section 23 (b) of the Penal Code Act.
In
order to establish the offence of misprision of treason, it must be proved that
the accused knew that a named person had fixed intention to commit treason. A
charge of misprision of treason which does not name the person intending to
commit treason is affected.
Read:
Mattaka versus Republic (1971) (A47)
Uganda
versus okot and 12 others (sec Case 477 920b)
KINDRED
ARE: aiding or inserting soldiers or policemen to muting or desert (sec 29&
30 of the PCA) and aiding prisons of war to escape (sec31)
It
is also a felony to carry on assist or advise any war like undertaking for or
against a chief or any ban of persons except with lawful authority. (Sec 27 of
the PCA).
N.B.: Prosecution of these offences must
be commenced within five years after the commission of the offence (sec 28 of
the PCA)
2.0
TERRORISM (Sec 26 of the PCA)
Terrorism
is in the broadest sense, the use of intentionally indiscriminate violence as a
means to create terror, fear, to achieve a financial, political, religious or
ideological aim. It is used in this regard primarily to refer to violence
against peacetime targets or in war against non- combatants.
The
Anti- Terrorism Act 2002 refers to as the use of violence or threat of violence
with intent to promote or achieve religious economic and cultural or social
ends in unlawful manner that includes the use or threat to use violence to put
the public in fear or alarm.
Some
of the Known terrorist groups include: - Al-shabab, the Alliance of Liberation,
Al- Qaeda, The Hizbul Islam and previously the Kony Rebel group.
Under
Sec 6 of the Anti- Terrorism Act, a person commits an act of terrorism who for
the purposes of influencing the government or intimidating the public and it’s a political social
economic or religious aim indiscriminately without due regard to the safety of
others or property does all or any of the ten acts listed, these include: -
1. Manufacture
2. Delivery
3. Placement
4. Detonation
of an explosive or lethal device which intent to cause death or injury or
destruction.
5. Kidnapping,
murder or attack on persons in public or private institutions or on diplomatic
agents or other internationally protected persons.
6. Provisions
and collection of funds with the knowledge at these funds may be used to carry
out terrorist activities.
7. Cease
or high jack of an air craft or public transport vessel or high jacking of a
person or persons for ransom.
8. Interference
with or destruction of electric systems
9. Unlawful
dealing in and possession of fire arms, explosives, bombs or ammunition
10. International
development or production or use of a biological weapon. One is equally liable
if he aids abets terrorism and is liable to suffer the same maximum punishment
of death (Sec 7 ATA)
Similarly, if one establishes or runs or
supports any institution that promotes terrorism many ways e.g. by publishing
or determining news or materials to that effect or training and mobilizing
peers and funds to promote terrorism, that person is liable under section 8
NB:
Under Section 2, a person shall not be prosecuted for any offence under the ATA
minus the DPP’S
Consent.
Read:
- Uganda versus Hassan Agadya&12 Others
And
Uganda Versus Ssekabira and 10 others High Court Criminal Case No. 0085 of
2010.
3.0
SEDITION (Section 40 of the Penal Code Act)
Sedition
is an overt conduct such as speech and organization that tends toward the
insurrection against the established order. Sedition often includes subversion
of a constitution and incitement of discontention or resistance to lawful
authority. Sedition may include any commotion though not aimed at direct and
open violence against the laws. Seditious words in writing are seditious libel.
A Seditionist is one who engages in or promotes the interest of Sedition.
A
person is guilty of the offence of sedition who;
1. Does
or attempts to do or makes any preparations to do or conspires with any person
to do any act with a sedition intention.
2. Attars
any sedition words
3. Prints
or publishes or sells or offers for sale or distributes or produces any
sedition publications
4. Imports
any seditious publication unless he/she has no reason to prove the truth of
which shall lie on him or her at it is not seditious sec 40 PCA
Under section 3a, a
section intention is,
a) To bring into hatred or contempt or exits disaffection against the government as
by law established
b) To
excite the people of the country to attempt to procure the alteration otherwise
than by lawful means of any other matter in the country as by law established.
c) To
bring into hatred or contempt or to excite disaffection against the
administration of justice in the country.
d) To subvert or promote the subversion of the government of the administration of
the district
PLEASE NOTE THE
EXCEPTION SEC 39(2)
Causation
without lawful excuse of seditious publication is an offence under section
40(2) Absence of knowledge of sedition content in publication or immediately
reporting such material to authorities as soon as one become aware of the
content as seditious is a defence under section 40(4)
Andrew
Mwenda and Anor V A.G consolidated cost petitions 12(2005) & 3 (2006)
Uganda Versus PC John
Balaba The accused person was charged with a convicted o
attempt of court sec 101(1) (a) of PCA. He was fined Shs 501/= which he paid.
It was said the accused had kept sitting when the court arose.
“any person who, with in
the premises in which my judicial proceedings are being had or taken, or win a
precincts of the same shows disrespect, in speech manner two or with reference
to such proceeding, or any person before when since proceeding is being heard
or taken is guilty of a misconduct and is liable to imprisonment of 3 months”.
Held:
- remaining seated while the court arises does not amount to showing disrespect
to court of the presiding magistrate which in the meaning of the section.
1.1 PERJURY (Section 94 of the
Penal Code Act)
According
to Osborn’s
law dictionary, perjury is defined as the making of a false oath by a witness
or interpreter in a judicial proceeding of a statement material in that
proceeding, which he knows to be false or which he does not believe to be true.
This
is offence of willfully telling an untruth or making a misrepresentation under
the oath in other words;
Ø It’s lying under oath
Ø Violation
of an oath
Ø Giving
false evidence
Ø Testimony
Ø False
swearing
Ø Making
false statements
It
is intentional act of swearing a false oath or falsifying an affirmation to
tell the truth, whether spoken or in writing, concerning matters material to an
official proceeding
False
swearing refers to knowingly and intentionally giving a false statement under
oath, searing corruptly, or willfully and knowingly deposing false in a sworn
statement concerning some fact before an office authorised to administer an
oath. Although the term false swearing and perjury are often used
interchangeably, in the strict legal sense there is a definite difference
between them. The main difference is that the false oath in perjury must be
made in a judicial proceeding, whereas in false swearing need not be such a
proceeding. While perjury can be based only on an oath required by law, in
false swearing the oath may be in a voluntary statement or affidavit, and it is
not necessary that the purpose of the oath was to influence or mislead anyone.
In addition, although perjury requires that the false statement be material,
false swearing does not.
Section 94 of the Penal
Code Act provides for the Offence of Perjury.
It
is also important to note that a court interpreter can also be charged for the
offence of perjury as provided under section 96 of the Penal Code Act.
The
punishment for perjury as provided for
under section 97 is 7 years’ imprisonment.
According
to section 95 of the Penal Code Act, provides for contradictory statements
which may lead to the offence of perjury. Where a witness in any judicial
proceedings, other than a person accused of an offence to which the proceedings
related, makes a statement on oath or affirmation of some fact relevant in the
proceedings contradicting in a material particular a previous statement made by
the witness or oath or affirmation before a court during the same or any other
judicial proceedings, the witness, if the court is satisfied that either of the
statements made was made with intent to deceive, commits an offence and is
liable on conviction to a fine not exceeding ten thousand shillings or to
imprisonment for a term not exceeding twelve months or to both such fine and
imprisonment.
Therefore,
an interpreter who makes a false statement in due course of interpretation in
any proceedings in court and knowingly knows it to be untrue commits perjury.
This is provided for under section 96 of the Penal Code Act; Any person who,
lawfully sworn as an interpreter in a judicial proceeding, willfully makes a
statement material in the proceedings which he or she knows to be false, or
does not believe to be true, commits perjury. False swearing amounts to perjury
and according to section 100, any person who falsely or makes a false
affirmation or declaration before any person authorized to administer an oath
or take a declaration upon a matter of public concern under such circumstances
that the false swearing or declaration, if committed in a judicial proceeding,
would have amounted to perjury commits a misdemeanor.
Section
97 of the Penal Code provides for the punishment of perjury and
It states that “Any person who commits
perjury or suborns perjury is liable to imprisonment for seven years.” The defence one
can put up or perjury is compulsion. In this case the person’s life was threatened
to either be killed or be caused an injury. The threat may not be at that time
but it may lead them to live in fear and hence they commit perjury. The threat
may not be at that time but it may lead them to live in fear and hence they
commit perjury
In
Huddson and Taylor (1971) QB 202 Hudson aged 17 and
Taylor aged 19 were the principal prosecution witnesses at the trial of a man
called Jimmy Wright. He had been charged with malice wounding both Hudson and
Taylor had been in the pub where the wounding was alleged to have occurred and gave
statement to the police. At trial however, the girls failed to identify Wright
and as a result he was acquitted. In due course, the girls were charged with
perjury. Hudson claimed that another man who had a reputation of violence had
threatened her that if she told on Wright in court she would be cut p. She
passed on this threat to Taylor and the result was they were too frightened to
identify Wright especially when they arrived in court and saw the man in the
public gallery. The trial judge withdrew the defence of duress from the jury
because the threat could not be immediately be put into effect when they were
testifying in the court room their convictions were quashed.
Read
R versus Rawebhi 13KLR 74
Esaunamanda v Uganda
The
trial judge in criminal session case no. 55 of 1991The trial Judge alleged that
the witness / appellant had stated in his examination in chief that he was 37
years old and in cross examination he denied that he had told court that he was
aged 37 years. Rather said he was 33 years old. The trial judge there by found
him guilty of perjury and sentenced him to 6 months and one day’s imprisonment. The
convict appealed against the conviction on grounds that the trial judge erred
in law to convict the appellant summarily without trial.
Held: The conviction of the appellant
was illegal as it was contrary to his constitutional rights art 15(20) (h) to
be informed of his offence and to permit him prepare his defence.
1.
The conviction would therefore be set aside. Secondly, the charge of perjury
formed a distinct charge from the material trial: - the conviction was entitled
to be tried by an independent tribunal. This had not been the case.
2.
For the accused to be convicted of perjury the discrepancy in the appellant’s evidence must be material
to the case or at it affected the credibility of the appellant in the instant
case the trial judge did not show the discrepancy in the accused; evidence was
material to the case.
The elements
constituting judicial perjury are: -
1. The
testimony given in a cause
2. Falsity
of such testimony in a material particular
3. Willfulness
of such falsity or criminal intent
The
first element is clear in the law since it is required that evidence is given
during a judicial proceeding before a court of justice made according to law
which includes any type of justice made according to law which includes any
type of statement which has evidential value regarding the fact of the case.
The
second element relates to the objective element of the offence that is it must
relate to false evidence under oath which has been administered according to
law by a competent authority. As held by various legal jurists including
manzini, this evidence must relate to the affirmation of the false, the
negation of the truth or reticence.
The
last two elements are the most important in order to lead to a conviction since
they deal with nature of the testimony and the intention of the witness. Therefore,
relating to the third element the falsity needs to refer to the fact which is
material to the outcome of the proceedings.
Proof
required for a perjury conviction: the general rule appears to be that to
convict a person of perjury, positive and direct evidence is necessary;
circumstantial evidence standing alone is never sufficient. The reason for this
rule is that it is considered unsafe to convict for perjury where it is simply
one man’s oath against another.
It is necessary that there be two witnesses to testify to the falsity.
In R V Atkinson,
the Court of Appeal for Eastern African said;” In our opinion the requirements of the
section (evidence of perjury are satisfied if one witnesses swears to the
falsity of the statement and there is, in addition, other evidence which
corroborates that witness: as it was put by the court of Criminal Appeal in the
case of Trelfall (10 C.A.R 112) ‘there must be one witness and something
more’.
In Confait v R [ 1958]
E.A. 289. (C.A) before the trial of a man charged with
rape, a witness, C, had volunteered a statement to a sergeant of police, who
recorded the statement and read it over to C, who then signed it. At the rape
trial the prosecution obtained leave to treat C as a hostile witness. Under
cross examination C denied having made the statement. At C’s own trial for
perjury, the police sergeant was a competent witness to prove the statement
whereupon the statement itself became evidence and was sufficient to
corroborate the sergeant’s
evidence as to the falsity of C’s
testimony at the rape trial. Therefore, the evidence of perjury requires more
than one witness to prove guilty of the accused person.
2.0
CONTEMPT OF COURT
Black’s Law Dictionary
defines contempt of Court as a crime committed by a person who does any act in
willful continuation of its authority or dignity or tending to impend or
frustrates administration of justice or by one who being under the courts
authority as a party to proceeding therein, willfully disobeys its lawful
orders or fails to comply.
This
is the offence of being disobedient to or discourteous towards a Court of law
and its officers in the form of behavior that opposes or defies the authority
justice and dignity of the Court.
It
is an act of being disrespectful accompanied by a feeling of intense dislike,
or it is a manner that is generally disrespectful and contemptuous.
In Uganda v
VovaniBagheni
The
accused was charged in three counts of concept of court case.
101
of the penal code trespass case 286 (a) of penal code and threatening violence
case 76(a) penal code respectively. He pleaded guilty to all three counts and
was convicted accordingly.
A
senior state attorney writing on behalf of the DPP through that the particulars
of offence in court I did not disclose the offence charged. The particulars
were stated as under,
VovaniBagheni
on 21st October 1977 at Mugete Village Gumg, Kyarumba, Bukunjo
county, Rwenzori District showed disrespect to the court by using force and
attempting to take away his child from Yontani when he led army soldiers to the
home of the said Yonatani to take to take the child by force so that V. Bagenyi
can avoid to pay Shs. 785/= as ordered by court in civil suit no.147 of 1974.
Held:
although the particulars of the offence in count were sufficient to disclose
the offence charged for a person to be convicted under that section there must
have been a proximity between the unit or decision of court and the time of
retaking or attempt to retake the child.
In
the instant case there was no proximity and there is no offence was disclosed
by the charge sheet.
Uganda versus Eusani
Oketcho & 5 Others
The
6 accused were convicted on 23rd June 1977 by a Magistrate grade 11
of contempt of court case 101(1) (b) of the penal code act.
Each
accused was fined Shs. 4,000 or imprisonment if one month in default of
payment. The lower court records did not show whether the fines were paid or
whether the accused person were criminalized and was length to have done The
particulars of the offence alleged that the accused persons with in the
premises of Grade Two courts before which a judicial proceeding was being had
or taken showed disruption to the said proceeding and to the magistrate by
abstinently refusing to be sworn.
The
six accused were defendants in a land dispute, civil suit no. m1197/7v before
the same magistrate. The accused declined to be sworn and to satisfy in their
defence on the ground that their advocate was not then present in court. The
Magistrate held that the defence advocate had persistently failed to appear on
numerous other occasions when the suit was filed for hearing and that he would
proceed in the advocate’s
advice. He, however went on to hold that their refusal to be sworn when called
upon to do so in the breath of the law and they should be treated under section
101 (1) (b). When the file was sent to the Director of public prosecutions in
his views. Held: -
The
Magistrate misunderstood the purpose of section 101(1) (b) that section is intended
to deal with retaliciment, witnesses, particularly in criminal cases.
In
a criminal case an accused person has a constitutional right to remain silent
or given unsworn testimony. In a civil adjournment in refused, a failure or
refusal to defend may be properly taken as an admission of the plaintiff’s claim since it is not
then being challenged or disputed. All the magistrate needed to do next was to
consider whether the plaintiff had made out a case in support of his claim or a
part of it & then give judgment accordingly.
Mulley versus R. (1957)
EA 138
The
Hon. Justice lyon, Chief Justice of the Sychelles, received through the post an
envelope containing two sheets of paper on which were typed carbon copies of
doggered versus set out as three poems containing scurrinious attacks on the
judge in his capacity as Chief Justice. The appellant was subsequently charged
with inter alia contempt of court and although acquitted on other charges was
convicted and sentenced to two months’ imprisonment which he served since his
adviser considered that an appeal was not competent under sec 301(1) of the
Seychelles criminal procedure code in respect of a sentence of less than six
months. Subsequently, an appeal was lodged and the appellant presented his case
in writing. The court of appeal however decided to assign counsel to consider
the appeal and a supplementary memorandum was filled limited to the main issue.
Contempt was none. Although verses were not signed, counsel conceded that they
had been written by the appellant, that they were in the worst state possible
grossly, rebellious and would have contained contempt had they been published
to a third party but he submitted that where the writing complained of is only
communicated to the judge of whom it is written, there is no publication and
accordingly the writing could not be held to be calculated to bring the judge
into contempt or to lower its authority.
Held: In a prosecution of contempt of
court it is necessary to show that something has been done in published which
is calculated to lower the reputation in authority of the court in the eyes of
the public and in order to constitute a contempt by libeling a judge it is not
sufficient to communicate the libel to him and to him only.
CONTEMPT TAKES TWO
FORMS THAT’S
CRIMINAL CONTEMPT AND CIVIL CONTEMPT.
Criminal contempt occurs when the
contemnor interferes with the ability of the court to function properly, for
example, by yelling at the judge, assault in the court room, interruption of
the court proceedings and others also known as direct contempt. Direct contempt
of court occurs in the presence of court during a court proceeding, for example
indirect contempt of court occurs outside the presence of court.
Civil
Contempt of court occurs when the contemnor willfully disobeys a Court order.
This is also called indirect contempt because it occurs outside the Judges
immediate realm and evidence must be presented to the Judge to prove the
contempt. This can be fined, jailed or both and it’s intended to coerce
the contemnor into obeying the court not to punish. Typically, the aggrieved
party, such as a parent who has not received court ordered child support
payments, may fail an action for Civil Contempt.
Civil
Contempt often occurs indirectly for example when a party is ordered to
turnover financial records within thirty days but refuses to do so. Indirect
contempt is some time called consequential contempt.
In
the case of Therium (UK) holdings Ltd Vs
Mr. Guy Brooke and 2 others [ 2016] Ewhc 2477(COMM), is one of the recent
judgment in England and the high Court. This case has made the common law
position in Contempt of Court Orders Clear.
BURDEN AND STANDARD OF
PROOF OF CONTEMPT OF COURT
The
burden of proof in contempt of court cases is always on the applicant and the
standard is beyond reasonable doubt. Contempt of court in common law is
criminal offense. This is father more explained in our constitution which is
recognized as a crime under Article 28 (3) (a) is to the effect that be
presumed to be innocent until that person has pleaded guilty.
In
para 14(1) of the Therium case (supra), it was considered that contempt cases,
the object the penalty is to punish conduct in defiance of the Court’s order as well as
serving a coercive function by holding out the threat of future punishment as a
means of securing courts orders.
In
Para 14(2) the grounds for consideration are:
1. Whether
committal to prison is necessary
2. What
is the shortest time necessary for such imprisonment?
3. Whether
a sentence of imprisonment can be suspended
4. That
the maximum sentence which can be imposed on any occasion is two years’
imprisonment.
5. Whether
there is a continuing breach the Court should consider improving a long
sentence possibly evens a maximum of two years to encourage future cooperation
by the contemnors.
In case of a continuing
breach the court may see fit to indicate;
What portion of the
sentence should be served in any events for punishment for passed breaches?
What potion of a
sentence the court might consider remitting in the events of prompt and full
compliance thereafter?
For
contempt of court proceedings, have written application which sound evidence
follow principals stated in the case. The director of Public Prosecution has
elusive power to conduct criminal trials under Article 120 of the Constitution.
So, does it make common law contempt of Court Principles unconstitutional, if
Contempt of Court proceedings is bought by a litigant or initiated by the
Court.
There
is no Civil Contempt of Court in common law it is only criminal in nature and
all powers of procedure are inherent resolved in the Court. In addition, men’s rea is needed to
prove this offence, and still at common law, only courts of record have power
to punish for contempt of Court. Once Contempt of Court is committed, it is
removed and separated from any Civil and Criminal proceedings.
DEFENCES
Section 9 of the Kenyan Contempt Act
states that in proceedings for contempt of Court, it shall be a defense if it
proved to the satisfaction that the conduct in issue.
a) As
a fair comment on the general working of the court made in good faith, in the
public interest and in temperate language.
b) As
fair comment on the merits of a discretion of a court made in good faith, and
intemperate language.
c) Is
a publication of a fair and substantially accurate report of any judicial
proceedings;
d) Is
a publication of any matter amounting to contempt of court by reason of its
being published during judicial proceedings by a person who had no reasonable
grounds to believe that such judicial proceedings were pending at the time of
the publication of the matter.
e) Pertains
to distribution containing any matter amounting to contempt of Court by a
person by a person who had no reasonable grounds to believe that the
publication contained or was likely to contain any such matter.
f) Is
a true declaration made in good faith and intemperate language for initiation
of action or in course of disciplinary proceedings against a Judge or judicial
officer;
g) Is
a plea of truth taken up as defence in any contempt of Court on an Appeal or
revision or application for transfer of a case or by a court in judicial
proceedings against a judge or judicial officer?
h) Is
a relevant observation made in judicial capacity by a superior Court on an
Appeal or revision or application for transfer of a case or by a Court in
judicial proceedings against a Judge or judicial officer.
i)
Is a remark made in an administrative
capacity by an authority in the course of official business, including a remark
connected with disciplinary injury or in an inspection note a character rule
confidential report;
j)
Pertains to any other matter exempted
from constituting a commission of an offence of Contempt of Court under any other
written law
Under Section 107 of
the penal code Act CAP 120 narrates offences relating to judicial proceedings.
1)
Any
person who:
a) Within
the premises in which any judicial proceedings are being had or taken or within
precincts of the same shows disrespect in speech or manner to or with reference
to such proceedings or any person before whom such proceeding is being had or
taken
b) Having
been called upon to give evidence in a judicial proceeding, fails to attend or
having attended, refuses to be sworn or to make an affirmation or having been
sworn on or affirmed, refuses without lawful excuse to answer a question or to
produce a document, or remains in the room in which such proceedings is being
had or taken, after the witnesses have been ordered to leave such a room.
c) Causes
an obstruction or disturbance during a judicial proceeding as well explained in
the case of R vs Parman and Guptas Advocates, the presiding officer of court
was conducting in session of trial of 2000.
In addition to
the above in the case of State Vs Zhuhai
and Others when the contemnor a person or entity who is guilty of contempt
before a judicial or legislative body came inside the court and shouted Saale
(an abusive term) Indian words, you have caused to be fixed the entire money
pertaining to my file. In the case of Kiran
Vs Subhash Chandra. Where shall I get my fee from? Court interpretation the
presiding officer intervened and said that the contemnor is uttering un
parliamentary and abusive language where upon the contemnor further said you
judge I will tear you apart and see you outside. The foresaid Act of the
contemnor was in the presence of litigants and advocates and thus lowered down
courts authority and amounts to contempt of Court.
d) While
the judicial proceeding is pending, makes use of any speech or writing
misrepresenting such proceedings or capable of prejudicing any person in fever
of or against my parties to such proceeding or calculated to lower the
authority of any person before whom such proceedings is being had or taken.
e) Publishes
a report of evidence take in any judicial proceeding which has been directed to
be held in private.
f) Attempts
wrongfully to interfere with or influence a witness in judicial proceeding
either before or after he or she has given evidence in connection with such
evidence.
g) Dismisses
a servant because he or she has given evidence on behalf of a certain party to
a judicial proceeding.
h) Wrongfully
retakes the possession of land from any person who has recently obtained
possession by write of Court.
i)
Commits any other act of intentional
disrespect to any judicial proceeding or to any person before whom such
proceeding is being had or taken.
2) When
any offence against sub section (1) (a) (b) (c) (d) or (i) is committed in view
of the Court, the Court may cause the offender to be detained in custody, and
time before the rising of the court on the same day may take cognizance of the
offence and sentence the offender to a fine not exceeding one thousand
shillings or in default of payment to imprisonment for a period not exceeding
one month.
3) The
provisions of this section shall be deemed to be in addition to and not in the
derogation of the power of the high Court to punish for contempt of court.
Contempt of Court proceedings are not to
protect judges personally from criticism but to protect the public by
processing in authority of the Court and the administration of justice from
under undue attack. This is further explained more in the case of R V Mullery [ 1957] EA 138.
In
R Vs Saidi Ibrahim (1960) EA 1058,
the applicant had appealed against conviction on the offence of contempt of
court arguing that the offended magistrate was at the same time the trial
Magistrate, and therefore could not be fair. The East African Court of Appeal Trial
Judge, Sir Ralph windham then ruled: the only other point argued in this
application for revision is that the case against the applicant, of contempt of
court ought to have been heard by another Magistrate, and not by same
Magistrate who had recorded the reconciliation… including the applicants undertaking the
breach of which constituted the contempt of court.
In
LameckKibacho Vs Republic (1979) LRT n
19, a police officer who had been charged of reading a newspaper in Court
and therefore convicted of contempt of court without being properly charged
appealed the conviction. Supreme Court Judge Jonathan, J ruled thus; it was
improper for the trial Court to summarily convict the accused of contempt of
court without drawing up a charge and asking the accused why he should not be
convicted on the charge.
4. CONSPIRANCY TO DEFEAT JUSTICE
(Section 120 of the Penal Code Act)
This
is the act of perverting the ends of justice. A person commits an offence if:
1. A
person conspires with another person to obstruct, prevent, pervert or to defeat
the course of justice in relation to judicial power.
2. It
involves someone preventing justice from being served on themselves or on
someone else.
3. The
course of justice involves the exercise by a court or competent judicial
authority, of its jurisdiction to enforce, adjust or declare the rights and
liabilities of the parties to proceedings.
4. Perversion
of course justice therefore occurs, when the conduct of an accused impairs,
obstructs, adversely interferes or prevents the court from administering
justice Meisser VR 1995 CLR.
What amounts to course
justice?
Police
investigations of an actual or suspected offence are not part of the course of
justice because the police do not administer Justice. R v Rogerson (1992)172 CLR. The offences of perverting and
attempting to pervert the course of justice existed to protect the process and
procedures of the sovereign courts and through this protect the administration
of justice.
The
course of justice begins when the jurisdiction of a court or competent judicial
body has been involved RV S Rogerson (supra). In criminal proceedings, it was
said the course of justice commences with the laying of information against or
arrest of an accused person.
INGRIDIENTS OF
CONSPIRACY TO DEFEAT JUSTICE
1.
The accused participated in the conduct
to pervert the course of justice.
2.
The accused had an intention to pervert
the course of justice
3.
That the defendant did the conduct in
the indictment
4.
That the conduct alleged in the
indictment had the tendency to pervert the course of justice i.e. to turn aside
from its proper course.
5.
That the defendant intended to pervert
the course of justice by his action.
N.B. The prosecution does not have to
prove that the course of justice was perverted or would have been perverted. It
is sufficient that the prosecution established that there was real risk that
injustice might occur.
For attempt offences, conduct
objectively tends to pervert the course of justice. This will be ratified E.G.
when conduct has the objective capacity to result in one listed above.
In the case of L b Aydin (2005) the alleged threat and bribes were made to a
police officer who was part of a controlled operation. Therefore, there was no
actual risk of the officer being induced to act or the threats or bribes. The
defended was convicted for attempting to pervert eh course of justice because
in the ordinary course bribing or threatening a police officer who does pose
real risk to interfere the course of justice.
ATTEMPT TO PERVERT THE
COURSE OF JUSTICE
Frustration
of a police investigation, before judicial proceedings have been instituted to
amount to the actus reas of attempting to pervert the course of justice. This
is because frustrating police investigations in the circumstances of the case
could have a tendency to pervert the course of justice by hindering the ability
of the police to involve court’s
jurisdiction or ascertain the truth of facts presented to court. The course of
justice ends when the rights and liabilities of the parties are finally
determined and declared by the court or other competent judicial body. R V
Rogerson.
WAYS OF A PERSON CAN
INFLUENCE THE COURSE OF JUSTICE
1.
·Hiding
of police files.
2.
·Removing
Court documents from the file.
3.
·Conspiracy
to intimidate or assault witnesses
4.
·Hiding
exhibits
5.
·Erosion
of the integrity of the court or competent judicial authority.
6.
·Hindering
access to the court or competent judicial authority.
7. ·Denying the court or
competent judicial authority knowledge of the circumstances and facts of the
case.
8. ·Impending the force
exercise of the jurisdiction and power of the court including power to execute
its decisions. R. V. Rogerson.
9.
·Tempering
with evidences
10.
·Fraud
11.
·Manipulating
a witness and perjury
ATTEMPT TO PERVERT THE
COURSE OF JUSTICE
Perverting
the course of justice is an offence committed when a person prevents justice
from being served or him or her on another party. In England and Wales, it is a
common law offence carrying a main sentence of life imprisonment.
Haggins vs The Queen
Haggins
was driving a car with bejawn and three other passengers (one co-accused) when
it was stopped by the police.
Haggins
gave police a false name (name of friend of his brother). Vehicles were
searched and 205g cannabis was found in the boot. The cannabis had been stolen
by Haggins and bejawn with the intent of selling it in queen’s land when they
arrived there however, the co-offender stated cannabis was his and gave the
police name. Haggins instructed to drive a car to police station and others
were taken in police car to the station.
In
attempting to pervert the course of justice, a person may misdirect the
direction of justice to influence the outcome of a case.
Intimidation
is when a person threatens another with violence physical or financial harm or
makes threats regarding a third party. This would include threats made towards
the family or friends of a case witness. Such threats are made with the ambition
of stopping a witness from proving evidence in court or from reporting the
crime at all.
Destroying
evidence or fabricating it refers to any evidence that is related to a case. If
the evidence is lost, damaged or tampered with, it makes it difficult or even
impossible to prove that person is guilty or innocent of a crime. To dispose of
the evidence, a person would take such actions as burning, throwing it away,
burying or hiding it. As this tampering of evidence would seriously hinder the
outcome of the case, it is considered to be perverting the course of justice.
DEFENCES
1. If
the accused person was acting under Duress
2. Honest
and reasonable belief that the act did not amount to conspiracy to defeat
justice.
Prepared by: HER WORSHIP NKONGE AGNES
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