Purpose of Criminal Proceedings
The purposes of conducting criminal
proceedings are, mainly,
a) To give the prosecution an opportunity to
prove their case against the accused;
b) To enable the accused to exercise the
fundamental right to defend him/herself, if he/she so wishes;
c) To ensure that the accused is tried by an
independent and impartial court;
d) To punish the accused if found guilty of the
charge laid against him/her.
Difference between Criminal Proceedings and
Civil Proceedings
a) The object of criminal proceedings is
punishment, but the object of civil proceedings is compensation.
b) Criminal Proceedings are initiated by or on
behalf of the State, whereas civil proceedings are initiated by private
individuals, and not necessary by the State.
c) The State controls criminal proceedings by
controlling prosecutions, whereas civil proceedings are a matter for private
individuals.
d) Only the State can ordinarily withdraw or
decline to prosecute a criminal case, but in civil cases the plaintiff is free
to withdraw his/her claim anytime.
CHAPTER 2
INSTITUTION OF CRIMINAL PROCEEDINGS
Mandate and functions of the DPP in
Criminal Proceedings:
1.
Public Prosecutions:
Section
42(1) of the Magistrates Court Act lays down two ways, in which public
prosecutions may be instituted, namely,
a) By a police officer bringing a person arrested
with or without a warrant before a magistrate upon a charge: or
b) By a public prosecutor or a police officer
laying a charge against a person before a magistrate and requesting the issue
of a warrant or summons.
Both of
these methods are used in practice. The first is used when an accused has been
arrested by the Police so that he/she can be taken before the magistrate with
the charge laid against him/her. The second method is used where an accused
person has not already been arrested and the process of the court is invoked to
enable the police to apprehend the accused or force him/her to appear in court.
The first method, however, is more often used than the second one.
2.
Private Prosecutions:
Section
42(1)(c) of M.C.A provides that private prosecutions may be instituted by a
person other than a public prosecutor or a police officer, making a complaint
as provided in S.42(3) of M.C.A an applying for the issue of a warrant or a
summons in the manner laid down in the Section.
The
detailed procedure for instituting private prosecutions is laid down in
subsection (3), (4), (5) and (6) of Section 41 of M.C.A. By virtue of Section
42(3) any person other than a public prosecutor or a police officer, who has
reasonable and probable cause to believe that an offence has been committed by
any person, may make a complaint thereof of a magistrate who has jurisdiction
to try or inquire into the alleged offence or within the local limits of whose
jurisdiction the accused person is alleged to reside or be. Every such
complaint may be made orally or in writing signed by the complainant, but if
made orally shall be reduced into writing by the magistrate mid when so reduced
shall be signed by the complainant.
Upon
receiving a complaint, the magistrate must consult the local chief of the area
in which the complaint arose and put on record the gist of such consultation.
Where the complaint is supported by a letter from the local chief, the
magistrate may dispense with the consultation and thereafter put such letter on
record. [S.42 (4)(a) of M.C.A].
After satisfying him/herself that prima facie
the commission of an offence has been disclosed and that such a complaint is
not frivolous or vexatious, the magistrate must draw up and sign a formal
charge containing a statement of the offence alleged to have been committed by
the accused. [S.42 (4)(a) of M.C.A].
When the charge has been drawn up the
magistrate must issue either a summons or a warrant as he/she deems fit, to
compel the attendance of the accused person before the court over which he/she
presides or if the offence alleged appears to be one which he/she is not
empowered to try or inquire into before a competent court having jurisdiction
[Section 42(5)].
However, notwithstanding the provisions of
Section 41(5) above, a magistrate receiving any charge or complaint, may if
they think fit for reasons to be recorded in writing, postpone the issuing of a
summons or warrant and may direct an investigation or further investigation to
be made by the police into such a charge or complaint and report to the court
which issued the direction.
Private prosecutions are mainly conducted in
minor offences only. The police investigate and institute prosecutions in most
of the serious offences.
Private prosecutions cannot be conducted
before the High Court. This view is based, inter cilia, on the provisions of
Section 136 of the Trial on Indictments Act which provides,
“All
prosecutions before the High Court shall be conducted by a member of the
Attorney General’s Chambers or by such other person as the Director of Public
Prosecutions may, by writing under his hand, appoint.”
3.
Proceedings in the High Court
Section
1 of the Trial on Indictments Act provides that no criminal proceedings shall
be brought under the cognizance of the High Court for trial unless the accused
person has been committed for trial to the High Court in accordance with the
provisions of the Magistrates Court Act. Under part XIV of the said Act the
accused cannot be committed for trial unless the Director of Public
Prosecutions has complied with his duties under Section 168 of the MCA. These
duties are to:
a) Draw up the indictment in accordance with the
provisions of the Trial on Indictments Act (See Section 26 and 27 of the Act).
b) Prepare a summary of the case in accordance
with the provisions of the Magistrates Courts Act (See Section 168(1).
c) File a signed copy of the indictment and the
summary of the case with the court of Chief Magistrate, S.168(1).
After complying with the above, committal
proceedings are held during which the court commits the accused to the High
Court for trial.
4.
The Decision to Prosecute
In
deciding whether or not to prosecute any person the DPP and the Police enjoy
ample discretion. But this discretion must be exercised judicially i.e. upon sound
reasons after serious consideration of the matter. There are not set down rules
to be followed in the exercise of this discretion to prosecute or not to
prosecute. But in practice the DPP takes into account the functions of criminal
law namely retribution prevention, deterrence, and reformation as well as the
public interest. A part from this policy
whether or not to prosecute in a particular case:
a) Whether the facts contained in a complaint or
report disclose a crime or offence known to the law. The offence must be
written or defined and punishment prescribed;
b) Whether there is sufficient evidence to
support these facts to justify the institution of criminal proceedings;
c) Whether there is legal excuse for the conduct
of the accused to negative or justify the offence and to warrant the
abandonment of proceedings against him/her;
d) Whether the case is more suitable for trial in
the civil court for the reason that the facts raise a question of civil right;
e) Whether the act or omission charged is of sufficient
importance to be made a subject of a criminal prosecution and is not frivolous
or trivial;
f) Whether there is any reason to suspect that
the information or complaint is inspired by malice or ill-will on the part of
the informant/or complainant; towards the accused, and is likely to result in
an abuse of the judicial process;
g) Whether there is justification for dealing
with the suspect or accused in another way other than through criminal
prosecution.
The decision to prosecute or not is important
as it ensures that those reasonably suspected to have committed offences are
brought to trial by an impartial court, while those suspected upon baseless and
unfounded allegations are not put to unnecessary inconvenience of undergoing
the ordeal of a trial.
5.
D.P. P’s Consent to Criminal Prosecutions
Quite a
number of statutes creating offences provide that no prosecution for the
offence shall be instituted without the consent of the Director of Public
Prosecutions. A common formula is as follows: -
“A person shall not be prosecuted for an offence under this Section
without the written consent of the
Director of Public Prosecutions.”
The Penal Code Act itself has numerous
offences which require the consent of the Director of Public Prosecutions. A
list of the statutes creating offences which require the consent of the DPP is
given below.
The necessity for this requirement appears to
be based on policy grounds, namely,
a)
To secure uniformity in the Administration of
the Act,
b)
To prevent vexatious proceedings being
instituted to gratify a prosecutor’s personal feelings, and
c)
Because the provisions of the Act are very
wide and it might be desirable for the DPP to act as a kind of sieve to ensure
that acts which it was never intended to bring within the ambit of the law are
not made the subject of serious criminal charges.
The fact that the consent is required to the
institution of proceedings does not mean that an accused person cannot be
arrested and charged with an offence by the Police. This is permissible because
the proceedings which require the consent to their institution are Court proceedings and not police
investigations. Court proceedings begin when the courses provided for in
Section 42 of the Magistrate Courts Act have been set in motion. Generally speaking,
therefore, when an accused person is taken before a court upon a charge, the
Director of Public Prosecutions must have given his/her written consent to the
charge in order to make the prosecution valid. It is not enough that the
prosecution is conducted by a State Attorney, nor is it sufficient for the
State Attorney to state to Court that the D.P.P has agreed to the prosecution.
The consent must be written and not oral, and the State Attorney has no power
to give the consent. In practice the charge is drawn up and sent to the DPP/who
appends his/her consent just below the charge in these words:
“I consent to the above charge”
Where the consent is required but not obtained
before the institution of Court proceedings, the proceedings are a nullity ab
initio and a conviction resulting from such proceedings cannot be
sustained.
Before leaving this question of consent, it
may be noted here that the provisions laying down the requirement for consent
show some differences. For instance, one set of provisions have a proviso to
the effect that a person charged with an offence may nevertheless be arrested
or a warrant for his/her arrest may be issued (mid he/she may be remanded in
custody or on bail) notwithstanding that the consent of the DPP has not been obtained,
but no further proceedings can be taken until his/her consent has been
obtained. (See Section 28 of the Prevention of Corruption Act Cap. 121 and S.12
of the Official Secrets Act Cap.301. Nevertheless, a trial upon a charge
without the consent of the DPP will be a nullity.
Another variation appears under Section 49(5)
of the Penal Code Act which lays down the requirement for consent for the
offence of wrongfully inducing a boycott created by Section 49(1) of the Penal
Code Act. The said Section 49(5) provides that:
“where
any person is charged before any court with an offence under this Section, no
further proceedings in respect thereof shall be taken against him without the
consent of the Director of Public Prosecution except such as the court my dunk
necessary by remand whether in custody or on bail or otherwise to secure the
due appearance of the person charged so, however, that if that person is
remanded in custody, he shall after the expiration of a period of fourteen days
from the date on which he was so remanded be entitled to be discharged from
custody on entering into a recognizance without securities unless within period
the Director of Public Prosecutions has consented to such further proceedings
as aforesaid”.
The main difference of this provision from the
others is the limitation on the period which an accused person can be remanded
in custody to fourteen days where the requisite consent has not been given. The
only justification for this limitation appears to be that the offence of wrongfully
inducing a boycott is a misdemeanor punishable with six months’ imprisonment,
and it would be unfair to keep an accused in custody with the charge against
the accused. This assurance only comes when the DPP has consented to the
prosecution. Of course, where he/she does not consent, the charge against the
accused will be withdrawn and the accused discharged.
List of some of the Offences Requiring the Consent of the DPP
a) Penal Code Act: (Cap.
120)
Seditious offences S.40, [Consent is under S.43(2)]; Wrongfully
inducing boycott S.49(5); Incitement to violence S.51, [Consent is under
S.51(2)] Incitement to refuse or delay payment of tax S.52, (Consent is under
S.52(2)]; Managing unlawful society S.57, [Consent is under S.57 (1)]; Offences
relating to unlawful society S.58, [Consent is under 8.57(1)]; Restrictions on
officer bearers S.56, [Consent is under S.57(1)]; Watching and besetting S.82,
[Consent is wider S.82(2)]; Offences by officers charged with administration of
property of a special character S.85, (Consent is under S.88); Abuse of office
S.87, (Consent is under S.88); False statements in certain judicial proceedings
S.95, [Consent is under S.95(3)]; Incest S.149, (Consent is wider S.151);
Publication of defamatory matter concerning a dead person S.180(1), [Consent is
under S.180(2)].
b) Companies Act: (No.2012)
Certain offences in connection with disposal of shares S.175(5),
Consent by the DPP is provided under S.175(7). Officers of Company failing to
account for loss of company’s property S.325, Consent of the DPP required under
Ss(2).
c) Public Service Act (Cap 288)
Improper influence S.7 and 8, Improper disclosure, Consent by the DPP
IS provided for in S.9 of the Act.
d) Official Secrets Act
(Cap. 302)
All offences under the Act S.12 provides for consent of the DPP to all
prosecutions under the Act.
e) Exchange Control Act
(Cap. 171)
Offences punishable under Part II of the Fifth Schedule. (Para.6(1) to
the Act provides for consent of the DPP to all prosecutions.
f) Trade Disputes
(Arbitration and Settlement Act (Cap. 244)
Breach of termination of certain contracts S.17, (Consent S.23)
g) Animals (Prevention of
Cruelty) Act (Cap. 39)
Experiments on living animals under S.11(1). Consent by the DPP is
provided in Ss (3) of S.11.
h) Prevention of Corruption
Act (Cap 121)
All offences under the Act S.28 provides for consent of the DPP to all
prosecutions under the Act.
i) Presidential Elections
Act 2005 (No.16/05)
All offences under the Act S.80 provides for consent of the DPP in
writing. But a person can be charged or arrested or remanded in custody without
the consent having been obtained first.
j) Parliamentary Elections
Act 2005 (No.17/05)
All offences under the Act. Section 87 requires prior consent of DPP
in writing before prosecution. But a person may be arrested, charged or
remanded before the consent is obtained.
NATURE, DIRECTOR OF PUBLIC PROSECUTIONS
POWER AND CONTROL
1. UGANDA
VS SANTINA LAKOT [1986] HCB. 27
Held; Karokora, J:
(i) The case having been initiated by a private
person that person ought to have made a complaint on oath as provided by S.41
93) of the Magistrates’ Court Act 1970. The complaint must be in writing and
must be signed by the complainant. Where it is made orally, it must be reduced
to writing by the Magistrate and signed by the complainant. This is a mandatory
procedure which must be complied with in all private prosecutions.
(ii) If the trial Magistrate is satisfied that
Prima Facie the facts disclosed the commission of an offence he must draw up or
cause to be drawn up a formal charge containing the statement of the offence
alleged to have committed by the accused and particulars of the offence.
In the
instant case, there was no complaint made or it was made orally, it was never
reduced to writing and signed by the complainant. Therefore the purported
charge was drawn in contravention of the mandatory provisions of S.41(3) of the
Magistrate’s Courts Act and was null and void.
(iii) Whether or not the prosecution is private, the
parties in Criminal proceedings are Uganda for the prosecution and accused for
the prisoner.
2. UGANDA VS. G. AKUTTI AND
2 OTHERS [1978] H.C. B 20
Held; Allen,
J:
(i) When a state attorney writes on behalf of the
Director of Public Prosecutions and instructs the police prosecutor to withdraw
the charge, he is not delegating his powers to Police. The Police prosecutor
has no discretion or choice in the matter and is simply given instructions by
the State Attorney and required to carry them out by informing the court of the
decision to withdraw. He is thus merely the instrument of the Director of
Public Prosecutions via the State Attorney for this purpose.
(ii)In cases where the Director of Public
Prosecutions has decided under his constitutional powers that a case should not
be prosecuted, the court has no discretion in the matter and it was therefore
unnecessary and indeed improper for the Magistrate in the instant case to write
a ruling upon it. His only function was to discharge the accused without delay.
3. KAMUDINI
MUKAMA VS UGANDA CRIMINAL APPEAL NO.36 OF 1995
Supreme Court;
Whether
a witness should be called by the prosecution is a matter within the discretion
of the prosecuting State Attorney and an appeal court will not interfere with
the exercise of that discretion unless for example it is shown that the
prosecutor was influenced by some oblique motive, however where the evidence of
an arresting witness is relevant, the prosecution should call that witness.
CHAPTER 3
STRUCTURE OF COURTS OF JUDICATURE
1.
The Hierarchy of Court
There
exists in this country a unitary system of courts which have different grades
and powers. When an offence has been committed it must be tried or heard by a
court which has power or judicial system consists of single hierarchy of courts
which stand in this order:
a) The Supreme Court of Uganda,
b) The Court of Appeal of Uganda,
c) The Constitutional Court
d) The High Court of Uganda
e) The Chief Magistrates Courts,
f) The Magistrates Grade I Courts,
g) The Magistrates Grade II Courts,
2.
The Supreme Court of Uganda
a) Establishment:
This Court was established by the Constitution
in Article 129(1)(a). It is the highest court in Uganda, and it is the final
Court of Appeal. (See Article 129-132 of the Constitution). The Judicature Act
No.13/96 provides for matters relating to the court.
b) Composition:
The court consists of the following members:
i.
The Chief
Justice, and
ii.
Not less than
six Justices of the Supreme Court.
The Court is duly constituted to hear a case
when it is composed of an uneven number, not being less than five, of the
members of the court. (Article 131 of the Constitution).
3.
The Court of Appeal of Uganda
a) Establishment: The Court of Appeal is established by Article
129(b) of the Constitution. The Judicature provides for matters pertaining to
the Court.
b) Composition: The Court consists of the following members:
i.
The Deputy
Chief Justice, and
ii.
Not less than
seven Justices of Appeal
The Court is duly constituted to hear an
appeal when it is composed of an uneven number, not being less than three
members of the court. (Article 135(1) of the Constitution).
4.
The Constitutional Court
This newly established Court deals with
interpretation of constitution. It is part of the Court of Appeal.
a) Establishment:
The Court is created by Article 137 of the
Constitution.
b)
Composition: The Court is duly constituted when it is
composed of five members.
5.
The High Court of Uganda
a) Establishment:
The Court is established by Article 138 of the
Constitution. It is a superior Court of record and has unlimited jurisdiction
throughout Uganda.
b) Composition:
The Court is composed of the Principal Judge,
and not less than six Judges. The court is however duly constituted by a single
judge when hearing criminal cases, although the judge is required to sit with
lay assessors when trying an accused person on an indictment.
6.
Magistrate’s Courts
a) Establishment:
The Magistrates Courts are established by
Section 3 of the Magistrates Courts Act. The three grades of Magistrates are
Chief Magistrate, Magistrate Grade I and Magistrate Grade II. Magistrate Grade
III Courts were abolished.
The powers and jurisdiction of a magistrate
are determined by the grade of appointment and the powers and jurisdiction
conferred upon such grade by the M.C.A.
b) Composition:
A magistrate’s court is deemed to be duly
constituted when presided over by anyone magistrate lawfully empowered to
adjudicate therein (S.5 of M.C.A).
c) Assignment
of Magistrates: Every
magistrate is deemed to have been appointed to, and to have jurisdiction in
each and every magisterial area, but may be assigned to any particular
magisterial area or to a part of any magisterial area by the Chief Justice.
(S.6 of M.C.A).
d) Magisterial
Areas; The Minister of Justice
is empowered, after consultation Magistrate. (See the Magistrates Courts Act
(Magisterial Areas) Instrument 1997 as amended by the Magistrates Courts
(Magisterial Areas Instrument 2004).
e) Qualifications
of Magistrates: Chief
Magistrates and Magistrates Grade I are professionally qualified lawyers.
Magistrates Grade II, are lay persons holding a Diploma in Law from the Law
from the Law Development Centre.
7.
Family and Children’s Courts:
a) The Family and Children courts are established
under Section 14(1) of the Children Act. The courts are presided over by a
Magistrate from the rank of a Grade II and above, subject to the jurisdiction
and hierarchy of the Magistrates’ Courts.
8.
Local Council Court
a) Establishment:
Local Council courts were established by the
Resistance Committees (Judicial Powers) Act 1988, now referred to as (the
Executive Committees Judicial Powers) Act, Cap.8.
b) Composition:
An Executive Committee Court consists of the
members of the executive committee of the village, parish and sub-county
council, not being less than five members.
CHAPTER 4
CRIMINAL JURISDICTION OF COURTS
1.
The Supreme Court of Uganda
The
Supreme Court is a superior court of record. See Article 129(2) of the
Constitution.
a)
Jurisdiction: This is an appellate court that deals with
first and second appeals from (i) The Court of Appeal and (ii) The
Constitutional Court (first appeals) – (Section 5 Judicature Act and Article
132 of the Constitution). An exception is provided for in relation to third
appeals that originate from a Chief or Grade I Magistrate’s Judgment. The DPP
or accused must first obtain a certificate from the Court of Appeal, to enable
him/her lodge a third appeal with the Supreme Court [Section 6(5) of the
Judicature Act].
b)
Powers of Court: The court can uphold a decision, reverse or
vary it; or give a declaratory judgement. [Section 6(2) of the Judicature Act].
In addition, the Supreme Court in hearing and determining an appeal has all
powers and authority of the court of original jurisdiction (Section 8
Judicature Act).
2. The Court of Appeal of
Uganda
The Court is a superior court of record
[Article 129(2) of the Constitution].
a)
Jurisdiction: This is an appellate
court dealing with first appeals from the High Court decisions. (Section II
Judicature Act and Article 134(2) of the Constitution) The court may also
entertain second appeals from the Chief Magistrates and Grade I Courts.
b)
Powers of Court: The court may uphold
(confirm) reverse or vary a decision of the lower court. Furthermore, the court
for purposes of determining an appeal, shall have all powers, authority and
jurisdiction of the court of original jurisdiction (Section 12 Judicature Act).
3. The Constitutional Court
a)
Jurisdiction: This is a court of
original jurisdiction and (a) determines any question relating to
interpretation of the Constitution or (b) determines any matter relating to any
act or omission, or act of Parliament or any other law or anything done under
the authority of any law, that is inconsistent or in contravention of any
provision of the Constitution. [Article 137(1) and (3) of the Constitution].
b)
Powers of Court: The court can make a
declaration, or grant an order for redress or refer the matter to the High
Court for investigation with a view to determining the appropriate redress
[Article 137(4) of the Constitution].
4. The High Court of Uganda
The court is a superior court of record
[Article 129(2) of the Constitution].
a)
Original Jurisdiction: This is the
trial of cases in the first instances. The High Court has jurisdiction to try
any offence under any written law. (S.1 of the T.I.A, and (Section 16
Judicature Act and Article 139 of the Constitution).
However, no criminal case can be brought under the cognizance of the
court for trial unless the accused has been committed for trial to the High
Court after holding preliminary proceedings. Normally the High Court tries
capital offences of murder, treason, aggravated robbery, rape, kidnapping with
intent to murder etc.
b)
Sentencing Powers: The High
court may pass any lawful sentence, combining any of the sentences which it is
authorized by law to pass. (S.2 of T.I.A).
c)
Appellate Jurisdiction: The Court
entertains appeals from decisions of Chief Magistrates and Magistrates Grade I
as well as second appeals from Chief Magistrates’ Courts.
d)
Other powers of the High Court:
i. Revisionary power under Section 48-54 of the C.P.C
ii. Confirmation of sentences under Section 173 of M.C.A.
iii. Transfer of cases under S.41 of M.C.A.
iv. Reservation of Question of Law under Section 206 of M.C.A.
v. Hearing of Election Petitions [Art.140(1) of the Constitution].
5. Chief Magistrate’s Court:
a)
Criminal Jurisdiction: The original
jurisdiction of a Chief Magistrates Court is governed by Section 161 (1) (a) of
the M.C.A. This provision is to the effect that a Chief Magistrate may try any
offence other than that punishable by death. The M.C.A further provides that
Chief Magistrates cannot try cases involving attempts to commit, aiding and abetting
or inciting the commission of that offence [S.161(2) M.C.A].
b)
Sentencing Powers: A Chief
Magistrate may pass any sentence authorized by law. This means that he can pass
a maximum sentence of imprisonment for life. There is no limit on the amount of
fine he may impose. (See S.162(1)(a) of
M.C.A.
c)
Appellate Jurisdiction: A Chief
Magistrate hears appeals from decisions of Magistrate Grade II (S.204 (1) (b)
of M.C.A). The court can also hear appeals from the Family and Children Court
[S.106(c) Children’s Act].
d)
Supervisory Powers: In accordance
with S.221 of M.C.A a Chief Magistrate has general supervisory power over all
magistrates within the area of his/her local jurisdiction.
e)
Transfer Powers: A Chief
Magistrate may transfer a case from any magistrate to him/herself or from one
magistrate to another. (S.171 of M.C.A).
6. Magistrate Grade I
a) Criminal Jurisdiction: A Magistrate Grade I has original jurisdiction and can try any offence
other than that punishable by death or life imprisonment. Such prohibited
offences are contained in Sections 23, 24, 25, 26, 27, 31, 45, 62, 102(1)(a),
123,129, 187, 188, 207,209,212, 213,214,215, 218,243, 260, 291, 332, 335(2) and
364 of the Penal Code. [S.161(10(b) of the M.C.A].
b) Sentencing Powers: A Magistrate Grade I sentencing powers are ten years imprisonment or a
fine not exceeding 1,000,000/= [One million shillings only] or both such
imprisonment and fine. *Section 162(1)(b) of M.C.A).
7. Magistrate Grade II
The Magistrate Grade II may try any offence under any written law
except the offences and provisions specified in Schedule I of the M.C.A. The
list is long, and leaves him/her with power to hear mainly cases which are not
serious and which fit in his/her sentencing powers.
The sentencing powers of the Grade II are limited to a sentence of
imprisonment not exceeding three years [S.162(c)M.C. A].
8. Magistrate Grade III
This was the lowest class of magistrates. They used to try any offence
under any written law expect the offences specified in Schedules 1 and 2 of
M.C.A and those for Magistrates Grade II.
This class of magistrates has now been abolished.
9. Family and Children’
Court:
a)
Criminal Jurisdiction: The Court has original
jurisdiction to hear and determine cases against children except those
punishable by death, or where the child is charged jointly with an adult.
[S.15(1)(a) and 94 of the Children’s Act]. For the time being the Magistrates’ Courts
from Grade II and above will sit as a Family and Children’s Court, and are
subject to the criminal jurisdiction laid down in S.161 of the MCA. In future,
Magistrates will be appointed specifically to manage these courts. The
rules of procedure are being drafted as well.
b)
Sentencing Powers: The
Magistrates will follow the jurisdiction laid down in S.162(1) of the MCA.
However, the terms of imprisonment are fixed for certain age groups of
children. Where a child is under 16 years of age, the maximum sentence of
imprisonment is 3 months. Where a child is above 16 years of age, the maximum
sentence is imprisonment is 12 months. In case of an offence punishable by
death, the maximum sentence that a court can give is 3 years imprisonment. [See
S.95(g) of the Children Act.]. It is stated categorically, that no child shall
be sentenced to corporal punishment [S.95(9) of the C.A].
c)
Appellate Jurisdiction: The court can hear appeals from the sub-county
local council committee court. [S.106(b) of C.A].
d)
Remission of Cases: Where a court finds out
that the person charged is a child, that court must remit the case to the
Family and Children’s Court. [S.101(1)(2) of the Act].
e)
Procedure:
1)
On conviction, court must first obtain a
written report on the social background of the child before sentencing the
child to imprisonment (detention) or making a probation order. [S.96(1) of
C.A].
2)
The words “proof of an offence” shall be substituted for “conviction” and “order” for
“sentence” in the court.
3)
A child
charged with an adult may be tried in the Magistrates court, if the offence is
triable by the Magistrates’ Court. [S.104(ii) of the Act]. Where the child is
charged jointly with an adult in respect of an offence punishable by death, the
child shall he tried in the High
Court. [S.105(1) of C.A]. Furthermore, the High Court shall remit the file back
to the Family and Children Court for sentencing or making of an order.
[S.105(2) of C.A].
10. Local Council Courts
(Executive Committee Courts):
(a) Criminal Jurisdiction
(i)
In general, Local Council courts have
jurisdiction over by-laws made by local councils.
(ii)
A village executive committee court has
jurisdiction over affray (S.79 PC) idle and disorderly persons (S.167 PC),
common assault (S.235 PC) actual bodily harm (S.2236), theft (S.254) criminal
trespass (S.302) and malicious damage to property (S.335 PC).
(iii)
The village executive committee court is the
court of first instance in respect of those offences committed by children.
(b) Sentencing Powers:
The Court may order reconciliation, compensation, restitution,
apology, or caution.
The Court may order reconciliation, compensation, restitution,
apology, or caution.
CHAPTER5
PLACE OF CRIMINAL TRIALS
1.
General Authority of Magistrates
Every magistrate’s court has authority to cause to be brought before
it any person who is within the local limits of its jurisdiction and is charged
with an offence committed within Uganda, or which according to law may be dealt
with as if it had been committed within Uganda, and to deal with the accused
person according to its powers. (S.31 of M.C.A).
Where an accused person commits an offence in one area and is found in
another, the magistrate’s court within whose jurisdiction the accused is found,
has power to cause him/her to be brought before it, and send him/her in custody
to the court within whose jurisdiction the offence was committed to be dealt
with according to law. (S.32 of M.C.A). The Court should issue a warrant to
enable the offender to be detained conveyed to the court which has jurisdiction
to try the offence (S.33 of M.C.A).
2.
Ordinary Place of Trial
Every offence must ordinarily be tried by a court within whose
territorial jurisdiction it was committed, unless transferred by appropriate
authority. (S.34 of M.C.A).
Where an offence is committed in several areas or in an uncertain
place, e.g. partly in one area or partly in another or continuously, the
offender may be tried in any of those areas (Sections 35, 36, 37 of M.C.A).
Similarly, where an offence is committed on a journey, voyage or flight, the
offender may be tried by a court having jurisdiction in any of the areas
through which the offender passed in course of that journey, voyage or flight
(S.38 of M.C.A).
In doubtful cases, the High Court has power to decide by which court
the offence should be tried. Any such decision shall be final and conclusive,
except that it shall be open to the accused to show that no court in Uganda has
jurisdiction in the case (S.39 of M.C.A).
3.
Court to be Open
The place in which any criminal court is held for purpose of trying
any offence is deemed to be an open court to which the public generally may
have access so far as the same can conveniently contain them. The court has
power to sit in camera or exclude any particular person from remaining in
court. (S.40(1). The court may sit on Sunday or on a public holiday if it is of
the opinion that the omission to do so would cause an unreasonable delay,
expense or inconvenience. [S.40(2) of M.C.A].
4.
Power of the High Court to Change Venue (Transfer of Cases)
The High Court has power, under S.41 of M.C.A, to change the venue for
trial of a criminal case where it is made to appear to it, that any of the
following circumstances exist: -
(a)
That a fair and impartial trial cannot be held
in any magistrates’ court;
(b)
That some question of law of unusual
difficulty is likely to arise, or
(c)
That a view of the place in or near which any
offence has been committed may be
required for the
satisfactory inquiry into a trial of the same, or
(d)
That an order under this Section will tend to
the general convenience of the
parties or witnesses,
or
(e)
That such an order is expedient for the ends
of Justice or is required by any
provisions of the
M.C.A.
The High Court has power to make any of the following orders:
(a)
That any offence be tried or inquired
into by the court not empowered to do so,
but in other respects competent to inquire into or try the offence, or
(b)
That any particular criminal case or class of
cases be transferred from a
criminal court subordinate to its authority to any other such criminal
court of equal or superior jurisdiction, or
(c)
That the accused person he committed for
trial to itself
The High Court may act either on the report of
the lower court or on an application of a party interested or on its own
initiative. S.41(2). Every application
for transfer should be made by notice of motion supported by an affidavit.
Where the D.P.P makes such an application, there is no requirement that he
supports the application by affidavit. (S.41(3)).
Any accused person who makes such an
application must give to the D.P.P a written notice of the application,
together with a copy of the grounds on which it is made. No order of transfer
can be made unless at least 24 hours have elapsed between the giving of such
notice and the hearing of the application [S.41(4)]. When the accused person
makes any such application, the High Court may direct him to execute a bond
conditioned that he will, if convicted pay the costs of the prosecutor.
[S.41(5) of M.C.A].
5.
Sittings of the High Court
For the exercise of its original criminal jurisdiction, the High Court
holds sittings at such places and on such days as the Chief Justice or the
Judge who is to preside may direct. [S.4(1) of T.I.A]. The Chief Registrar of
the High Court does ordinarily give notice before all such sittings commence.
The High Court sits continuously in Kampala and by practice at the headquarters
of all Magisterial areas while on circuit.
CHAPTER 6
POLICE INVESTIGATIONS
1.
Criminal Investigations in General
When a crime or an offence has been committed or is suspected to have
been committed, it is necessary to conduct investigations to ascertain the
person who has committed it and the circumstances under which he/she committed
it. Evidence must be assembled in this regard by the law enforcement agency
concerned or which has the duty to investigate the matter. It is after such
inquiry has been carried out that it is possible to decide,
(a)
Whether any offence has been committed;
(b)
Whether any person has committed it;
(c)
Under what circumstances the offence was
committed, and
(d)
Whether the suspected person should be charged
or prosecuted.
There are various law enforcement agencies
which are charged with the duty to investigate crime. Among these agencies are:
the Uganda Police Force, the Local Administration Police Forces, the Chiefs,
Law Enforcement Officers in various departments like Customs, Immigration and
Urban Authorities. However, the main responsibility to investigate crime lies
with the Uganda Police Force, especially through its Criminal Investigation
Department.
2.
The Law Applicable
It should be pointed out at the outset that Police Investigations are
conducted in accordance with well defined rules of law and practice. Such rules are essential to protect innocent
citizens who, may have their rights and liberty infringed during the course of
investigations. Most of these rules are contained in the enactments which
govern criminal procedure in general. Those specifically dealing with police
investigations are, the Police Act (Cap 303), the Evidence (statements to
Police) Rules 1961 (S.1 43-1), the Evidence (Bankers Books) Act (Cap 7) and the
Criminal Procedure Code Act (Cap.116). Police Standing Orders are also a useful
guide to criminal investigations, especially Volume 2 on crime and the Criminal
Investigations Department.
3.
General Powers and Duties of Police Officers
The Police are given various powers and duties under the Police Act.
Section 21(1) of the Act lays down specific duties in respect of detection and
investigation of crime. It is provided that a police officer shall perform the
following functions of his or her office:
(a)
To exercise the powers and perform the duties conferred
upon him or her by law;
(b)
To obey and execute all orders and warrants
lawfully issued to him/her by any
(c)
To be taken to be on duty at all times;
(d)
To collect and communicate intelligence
affecting the public peace;
(e)
To prevent the commission of offences and
public nuisance;
(f)
To detect and bring offenders to justice;
(g)
To apprehend all persons whom, he/she is
legally authorized to apprehend and for whose apprehension sufficient ground
exists.
The other powers and duties are provided for
in part V of the Police Act (Sections 21-42). Some of the powers in respect of
investigations are: the power to search (S.27), power to take photographs or
accused (S.30), power to institute criminal proceedings (S.31), power to
inspect licenses (S.40) and the duty to take custody of unclaimed property.
4.
The commencement of Investigations
The process of investigation is brought into motion when a complaint
or report of a crime or alleged crime is made to the police. The report may be
by word or by letter. It may be made by the complainant or victim, or by
his/her relative, or by the LC official, a Chief or by another person totally
unconnected with the offence. It may also be made by the person who has
committed the offence. This is called “First Information” which is normally
recorded on Police Form 86, in the Police Station Dairy.
The Crime report is then passed on to the O/C CID a particular Police
Station who decides whether or not a case file should be opened and on what
charge. The decision is passed to one of the senior members of staff who is
detailed to investigate the complaint or report. Such officer will normally be
the officer-in-charge of the particular case. It is usual for the case to have
under him officer-in-charge of the case may in fact re-allocate the
investigation of the case to one of the investigating officers, depending on
the nature and gravity of the offence.
5.
The Conduct of Investigations
(a)
After being allocated the case for
investigation, the investigating officer first proceeds to the scene of crime
to gather evidence. At the scene he/she may: -
(i)
Remove the body or take the victim to
hospital;
(ii)
Search the scene and collect exhibits;
(iii)
Arrest the suspect and search his/her home;
(iv)
Record statements from witnesses;
(v)
Draw rough sketch plan of the scene.
(b)
On his/her return to the Police Station the
investigating officer submits the case papers to the O/C CID, together with
his/her report either in the dairy or in a statement. The O/C CID decides
whether the suspect should be charged with any offence and if so what offence.
The suspect is then formally charged and cautioned and he/she may make a
statement if he/she so wishes. A charge sheet is then prepared and the accused
is taken to court for plea or in indictable offences to have the charge read to
him/her.
(c)
If the accused pleads not guilty and
investigations are complete, a hearing date is fixed and witnesses are summoned
to attend court then. The accused can be remanded in custody or released on
bail.
(d)
If the accused pleads guilty and he/she is
convicted, investigations end here and the case is completed and file put away.
(e)
If the accused pleads not guilty and
investigations are not complete, the accused may be remanded in custody or on
bail pending the completion of inquiries. But a date for mention is fixed
normally at 14 days interval when the accused remand or bail may be extended.
The police usually are required to inform the court of the position of
investigations let aside their having to apply for adjournment of proceedings.
(f)
The Prosecutor then returns the Police File to
the investigating officer with a minute in the dairy Section. The investigating
officer continues to carry out the investigations with a view to finalizing
them as soon as possible.
This is done by recording necessary statements from material witnesses
in order to close up gap in the chain of evidence.
(g)
When the investigating officer is satisfied
that the necessary and possible inquiries have been carried out, he/she submits
the case papers to the officer in charge of CID in that area or Police station
stating his/her opinion on the evidence assembled or recommending that the
papers should be submitted to the Director of Public Prosecutions or the
Resident State Attorney, for perusal and directions.
(h)
After perusing the case papers the OC/CID
decides whether the inquiries are complete and whether the case requires to be
submitted to the D.P.P for his opinion. If the case does not require the
attention of the D.P.P, the OC/CID will decide on the final charge and
subsequent prosecution. A minute in the diary Section is sufficient to convey
such a directive.
(i)
Where the case requires the attention of the
D.P.P because of its gravity or complexity, a forwarding letter usually on P.F
16(a), will be drafted and attached on the file. Such a letter will normally
contain the brief facts of the case, any lacuna in the evidence, and the nature
of advice requested for.
(j)
On perusing the Police File, the D.P.P or the
R.S.A may direct the Police to carry out further inquiries on specified
matters. After those investigations are completed the Police File may be
re-submitted to the D.P.P or R.S.A as the case may be, or retained by the
Police to proceed with the prosecution. When the file is re-submitted to the
D.P.P or R.S.A the file is perused again and decision on the charge and
evidence is made. This usually marks the end of investigation in the particular
case, and prosecution or preliminary proceedings follows.
6.
Types of Criminal Investigation
There are mainly three types of Criminal investigations conducted by
the Police. These are: -
(a)
Investigation of serious crime by the Criminal
Investigation Department.
(b)
Investigation of minor offences conducted by
uniformed Police.
(c)
Investigation of traffic offences, conducted
by the traffic police.
(a)
Investigation of serious crime:
There is no doubt that most of the crime in the country is
investigated by officers of the Criminal investigation Department (CID). Unless
the offence is extremely minor, it is detected by these officers. Such offences
are registered in what is called the Criminal Record Book. It is for this
reason that most Police Files are numbered as CRB No…………………………
(b) Investigation of Minor
Offences:
Petty crime is investigated by uniformed Police officers (as opposed
to officers of CID who wear civilian clothes). Such offences do not need much
skill in detection and are usually attached to a Section called MCB. Examples
of offences in this category are: common assault, affray, riots and offences
created by regulations and bye laws like failure to pay graduated tax or
possession of enguli without licence.
These offences are registered as MCB (Minor Contravention Book).
(c) Investigation of Traffic
Offences:
Sometimes it is not realized that traffic offences have to be detected
as well. It is usually assumed that in committing an offence, there is no need
for further investigation. It is true that in a majority of cases the accused
is actually arrested by the Police while committing the offence. It is also
true that in many of these cases, the accused pleads guilty. But where the
accused pleads not guilty, unless a thorough investigation has been carried out
in the case, a traffic case may well be as difficult to prove as a murder one.
Witnesses have to be interrogated and the scene has to be visited, and the
vehicles concerned examined by the Inspector of Motor Vehicles for a report as
to their mechanical condition. This is in fact a “post-mortem” report.
7.
The Police File
A Police File is a confidential record of case
papers pertaining to a case duly reported to the Police and registered. It
contains the relevant information collected in the course of investigations of
a particular complaint or case. This information, usually in the form of
statements recorded from witnesses interviewed or interrogated is what is “evidence on record”. The case papers are
usually enclosed or filed in a file cover marked as Police Form 2 or Police
Form 60.
8.
Police Interrogations
Police interrogations are regulated mainly by the Police Act and the
Evidence [Statements to Police Officers Rules, 1961. (S.1.43-1)]. These Rules
are similar to what are called “Judges Rules” in England.
A Police officer is given power in the course of investigations to
question any person whether suspected or not, from whom one thinks he/she may
obtain useful information (Rule 1).
Where a Police Officer has decided to charge a person with an offence,
he/she must administer a caution before questioning or continuing to question
them. (Rule 4). A caution must always be administered whenever any statement is
taken from any prisoner. (R.5)1. A prisoner means any person under arrest or in
lawful custody. (R.2)
9.
Statements of Witnesses
A statement of a witness is a record in writing taken from him/her
giving information whether useful or not with regard to a particular case being
investigated. The statement may be recorded by the witness him/herself or as is
the usual practice, by the Police. These statements usually contain the main
body of evidence in the particular case. They are usually recorded in narrative
form and in chronological order. The language used depends on the peculiar
facts of the situation in particular the language the witness and the Police
Officer can both understand. Where the Police Officer and witness cannot find a
common of communication then an interpreter is called in. All witness
statements are recorded in English.
10.
Recording of Statements from Witnesses
The Evidence (Statements to Police Officers) Rules provide the
procedure to be followed in recording police statements. If a police officer
decides that the statement of any person should be taken down in writing and is
likely to be tendered in evidence in any proceedings then if there is any
officer present who is literate in the language being used by such person, the
police officer literate in that language should write down the statement as
nearly as possible in the actual words used by the person making the statement.
[Rule 7 (a)].
If there is no police officer literate in the language being used by
such person the statement should be translated by some person with knowledge of
the language being used and should be written down by the police officer in the
language into which it is translated, and as nearly as possible, and in so far
as the translation admits, in the words used by the person making the statement
[Rule 7 (b)].
Police statements are usually recorded on Police Form 2B. The statement should contain the following
particulars of the witness: full name, approximate age, occupation, sex,
nationality or tribe, residence, postal address, date and time statement is
made and Police Station where the statement is made.
After this introductory information, then the body of the evidence
follows. The investigator should extract the story from the witness in a simple
manner and preferably in the chronological order in which the events happened.
If the investigating officer is not familiar with the case or the facts of the
case, he/she will ask the witness to go over it again in the order in which
he/she thinks makes the story clear and credible. The recording officer is free
to put questions to the witness to clarify and simplify certain matters which
are material to the case. The recording officer should know why he/she is
recording the statement from the witness so that he/she may ask relevant
questions. A statement should prove or disprove something. It is important that
the recording officer understands correctly what the witness is saying and for
this reason it is preferable for the recording officer to speak to the witness
direct through some common language well spoken and understood by both of them.
Where this is not possible, a good interpreter is necessary.
The Statement should be written in simple language avoiding unspoken
or ambiguous words. Sentences should be recorded in direct speech and in first
person e.g “I saw X beat Y”. The
statement should be based on admissible evidence, cutting out all obvious
hearsay evidence based on rumours. Needless to say, it should contain evidence
relevant to the charge or the matter being investigated. The statement should
be complete in the sense that the witness should have said all that he/she
knows about the matter, which is relevant to the inquiry. If he/she has
forgotten something, he/she should be allowed to say it and it be recorded.
After recording the statement, it should be read over to the witness
who should be asked whether he/she agrees with it. The witness then signs or
thumb marks the statement. [Rule 8 of the Evidence (Statements to Police)
Rules]. The witness’s certificate is usually to this effect:
“Statement taken down, read over to me and it is true and correct”
Thereafter the recording officer counter signs the statement with a
certificate to this effect,
“Statement recorded from the
above witness, read over to him/her and his/her signature witnessed by me at
(Police Station) on (date) and at (Time)”.
The recording officer should not only sign
his/her name but should also print it so that it is eligible. The officer may
be required to prove his/her statement in court when it desired to tender the
statement in Court. Statements should then be filed in the Police File in the
order in which the witness’s evidence fits in the whole story so that a
chronological progression of evidence on record is preserved. It is good
practice to number the statements, and have an index of witness’s statements at
the beginning of the Police File.
Additional statements should be avoided except
where the witness is being asked to clarify an aspect of his/her evidence but
not to repeat his/her story as this might result into two or more inconsistent
statements from the same witness. While credence is normally given to the first
statement when it is presumed that the memory is still fresh, where there are
several inconsistent statements from the same witness on the same matter, it
will be difficult to decide which of the statements to believe, and the
credibility of the witness will be greatly weakened. Therefore, additional
statements should be recorded only on specific aspects of the witness’s story
and not the whole story. Additional statements are also made where a
complainant wishes to withdraw the allegation against the suspect/accused.
It should be noted that a witness who gives
evidence inconsistent with his/her police statement may be treated as a hostile
witness (S.129 of M.C.A). The credibility of any witness may be impeached by
proof of his/her former inconsistent statement [(S.154(c)] of Evidence Act). A
previous consistent Statement may support or confirm a witness’s testimony in
Court (S.156 of Evidence Act). In capital or other serious cases triable by the
High Court, police statements from the basis of the summaries of evidence,
prepared by the DPP which are used for committing the accused for trial by the
High Court. All this emphasizes the need for police officers to record these
statements with meticulous care and accuracy.
11.
Chain of Evidence
A case is composed of various pieces of evidence whether direct or
circumstantial, which have to be linked together by proper investigation to
close any gaps that may be left open. One method of filling these gaps is to
complete the chain of evidence on a particular aspect of the evidence.
A good example of illustrate the chain of evidence is with regard to
movement of exhibits from the scene of crime to the Police Station. For
instance, if a spear is used in a homicide case the witness who first found it
at the scene should make a statement to that effect. Then the person who took
custody of it followed by the person who handed it to the Police or Chief for
custody as an exhibit. The Police Officer or Chief who collected the spear
should record his/her statement to that effect and so should the officer to
whom it was handed at the Police Station for custody. This last officer is the
one who produces it at the trial. The other witnesses will merely identify the
spear.
If there is a break in the chain of evidence regarding the movement of
exhibits or other evidence, the exhibit in question will not be admitted in
evidence, or if admitted, it will carry little weight because one cannot be
sure that the exhibit was not interfered with or is not a different one from
the one in question.
12.
Recording of Confessions
The Police have power to question any person whom they reasonably
suspect to have useful information regarding an alleged offence. This power
extends to suspects and accused persons. The posers of recording such
statements are contained in the Police (Statements to Police) Rules. These
rules appear to have been repealed by Section 24 of the Evidence Act as amended
by Decree 25/71 which prohibited the admission of confessions made to Police
officers. Until the Minister makes new ones, the D.P.P directed the Police to
follow the existing rules with necessary modification as relates to recording
of confessions.
However, in 1985, Section 24 (now 23) of the Evidence Act was amended
by Act 2/85, which restored the power of the police to take confessions from
suspects and persons in custody. It is provided that no confession made by any
person whilst he/she is in the custody of a police officer shall be proved
against any such person unless it be made in the immediate presence of a police
officer of or above the rank of Assistant Inspector or a Magistrate. [S.23(1)
of Evidence Act].
It is further provided that a confession made by an accused person is
irrelevant if the making of the confession appears to the court to have been
caused by violence, force, threats inducement or promise calculated to cause an
untrue confession to be made. (S.24). However, if such confession is made after
the impression caused by any such violence force threat inducement or promise
has been fully removed, the confession is relevant. (S.25). Where the
confession leads to a discovery of some other facts or evidence, so much of the
confession or information which relates distinctly to the fact thereby discovered
may be proved against the accused (S.29). An example is where an accused
informs the Police, “I killed X with a
gun and hid the gun in the tree”. The statement that “I had the gun in the tree” will be admissible if the gun is
subsequently discovered in the tree mentioned.
The most important principle which emerges from this law governing the
admissibility of confession is that the confession must be made by the suspect
or prisoner, voluntarily, by his/her own free will, without use of violence or
force or threats of any kind or inducements or promises of concessions. During
the trial the prosecution has to prove that the confession was made voluntarily
by the accused. Therefore, it is necessary when recording confessions that the
Police ensure that no pressure or inducement is exerted on the accused. In so
doing the Police should bear in mind that provisions of Constitution of Uganda
which provide that no person who is tried for a criminal offence shall be
compelled to give evidence against him/herself at the trial [Article 28(11)].
No person is to be subjected to torture or inhuman or degrading treatment
(Article 24 of the Constitution).
The Evidence (Statements to Police) Rules which are our version of
Judges Rules have been designed to ensure that the Police record statements
from persons in custody in a manner that renders them voluntary. Failure to
comply with the provisions of these Rules is likely to render the confession
inadmissible in evidence since the Rules have the force of law.
The procedure for recording statements or confessions from persons in
custody can be summarized as follows: -
a)
The prisoner should be charged with the
offence or informed of the charge likely to be preferred or the matter the
police officer investigating (Rule 9).
b)
The prisoner should then be asked if he/she
wishes to say anything.
c)
The
prisoner should then be cautioned, as the Rules require that no prisoner be
questioned unless a caution has first been administered. (Rules 4 and 5). The
caution should be in this form “You need not say anything unless you wish, but
whatever you do say will be taken down in writing and may be given in
evidence.” (Rule 10).
d)
The prisoner must not be cross-examined when
he/she is making his/her statement (Rule 6).
e)
The Statement must be recorded in the language
being used by the prisoner. It may be his/her mother tongue or other language
of his/her choice. It is the Police officer literate in that language to write
the statement in the words used by the prisoner. If there is no police officer
literate in the language being used by the prisoner, then translation by
another person should be employed and the police officer records it down as
translated (Rule 7).
f)
It is undesirable for the police officers
involved in the investigation to act as interpreters, as well as recorders of
statements from Prisoners.
g)
The statement should be read back to the
prisoner who should be invited to make any corrections and to sign or thumb
mark it (Rule 8).
h)
Where there are two or more prisoners charged
with the same offence and the statements are taken from them separately, the
police officer may read the statement of one prisoner to the other without
inviting a reply. If a prisoner wishes to make a reply he/she should be
cautioned (Rule 11).
The correct procedure to be followed by
Magistrates when recording confessions also called extra judicial statement is
prescribed by the Chief Justice vide his circular dated 2nd March,
1973 can be summarized as follows: -
a)
When an accused or suspect is brought to a
Magistrate, the magistrate should ensure that the Police or prisons officer
escorting the accused leaves the Chambers.
b)
The Magistrate should ask the court clerk to
sit in the Chambers so as to guard against unnecessary allegations and to act
as interpreter where necessary.
c)
The Magistrate should use court paper in
recording any statement from the accused (it has often been found that some
magistrates use Police stationery and allegations have been made by
suspects/accused that the statement was prepared by Police).
d)
The accused should be informed of the charge
against him/her if in fact has been charged. If he/she has not been charged
before, the Magistrate should inform him/her of the allegation brought by the
police as clearly as possible so that the accused is in no doubt as to the
nature of the charge which he/she is likely to face and upon which the
statement is likely to be adduced as evidence at the trial.
e)
Immediately upon being informed of charge, the
magistrate should caution the accused in the following terms: -
“You need not say anything unless you wish but
whatever you do say will be taken down in writing and may be given in
evidence.”
f)
Then the accused should be informed that
he/she has nothing to fear or hope for in making a statement before the Magistrates.
g)
If the accused volunteers a statement then
this should be recorded in the language used by the accused and an English
translation made of it. Both statements should be read back to the accused who
should signify his/her agreement with the contents with his/her signature or
thumb mark. Then the Magistrate should counter sign both statements and date
them.
h)
The accused and the original statements as
well their translations, if any, should be handed back to the Police officer
for custody.
13.
Reports of Experts
These may consist of:
a)
Medical Reports;
b)
Government Chemists’ Reports;
c)
Government Analysts’ Reports;
d)
Government Geologists’ Reports;
(a) Medical Reports
By far the largest number of reports of
experts found in Criminal Proceedings and in the Police, Files are Medical
Reports. This is because most offences today involve some violence and
therefore injury to the person. Medical evidence is normally recorded on
Standard Police Forms, in particular, the following: -
(i)
Medical Examination Report: (Police Form 3)-
This is used for examination of accused or victim in cases like assaults,
robbery and rape. The nature of the harm is usually classified e.g. grievous
harm.
(ii)
Post-Mortem Report (Police Form 48b): This
Form is used for examination of the body in homicide cases. The injuries found
on the body and the cause of death is usually indicated by the doctor who
performs the autopsy.
(iii)
Medical Examination of Persons Accused of
Serious Crime- (Police Form 24).
These usually contain finding as to age, injuries, and mental
condition of the accused. They are usually relevant in cases of homicide, rape,
defilement, robbery and assaults.
(b) Government Chemists’
Reports
These reports usually contain findings as to the examination of blood
samples found on persons or exhibits. They give findings as to Benzidine test
for blood, precipitation test for human origin and the blood group. This
evidence is mainly helpful as circumstantial evidence.
Government Chemists’ Reports are also helpful in cases of poisoning,
drunkenness, unlawful possession on Part 1 poisons, unlawful possession of
enguli, etc.
(c) Government Analysts’
Reports
These reports are concerned with examination of questioned documents,
firearms, ammunition and fingerprints. Most of the questioned documents are forged
and usually the Government Analysts, will give his/her report containing the
findings and opinion, after making his/her examination and comparison. With
regard to firearms and ammunition, the ballistic expert normally gives his/her
report on whether or not the accused has a record of previous conviction, in
almost all cases where the accused is arrested and charged with an offence. The
report is made on Police Form F.P 45.
(d) Government Geologists’
Reports
These reports are rarely found in Police Files, but there are offences
where the reports will be essential. For instance, in a case of illegal mining
of restricted minerals, it will usually be necessary to prove by expert
evidence that the particular stone mined is the particular mineral whose mining
is prohibited.
14.
Admissibility of Reports by Government Experts
Reports by Government Experts are admissible
in evidence by virtue of Section 103 of the M.C.A. It is provided therein that
any document purporting to be a report under the hand of a Government
Ballistics expert or of any Government Analyst or Government Geologist upon any
matter or thing duly submitted as to him/her for examination or analysis and
report may be used as evidence in any inquiry, trial or other criminal
proceeding under the M.C.A.
The expression Government Analyst included a
Senior Pathologist, a Pathologist and the Government Chemist. The Court is
given power to presume:
i.
That the signature or any such report by the
expert is genuine and the person signing it held office while supposed to hold
at the time when he/she held it; and
ii.
That any matter or thing to which such report
relates has if it is proved to have been delivered at the office or laboratory
specified in the report, been duly submitted for examination or analysis.
The expert examination or analysis on which
the report is based may be made by the person signing the report or by any
person acting under his/her direction. S.101(3)of M.C.A.
The effect of these provisions is to make
reports of Government experts admissible in evidence without calling them as
witnesses in court. In order to enable the court to accept such reports without
calling the experts, it is normal practice to publish the names of Government
experts in the official Gazette or to appoint them by Statutory Instrument.
(S.1 91/73, S.1 92/73, S.1 33/74, S.1 85/74, S.1 77/71).
Where the expert is required for
cross-examination or to explain his/her report, he/she may be called as a
witness instead of relying on his/her report only.
15.
Identification Parades
Identification Parades are normally conducted by the Police during
investigations in an attempt to identify the accused or suspect with the
offence for which he/she is charged or suspected. The purpose of the parade is
to find out from the witness who claims to have seen the accused or suspect at
the scene of crime, whether he/she can identify the accused or suspect as the
person he/she saw previously at the scene of crime or actually committing the
offence. The witness must have identified the suspect previously otherwise the
subsequent identification at the parade will be of no evidential value.
Secondly, the witness should not have seen the suspect subsequent to their
arrest, as his/her identification at the parade may be said to be based on the latter
identification, i.e. having seen the suspect after the arrest and not at the
time the crime was committed.
In order to ensure that identification parades are conducted fairly,
the High Court of Uganda has approved the following rules for conducting
identification parades. The Police officer conducting the parade is required to
ensure the following:
1)
That the accused person is always informed
that he/she may have an advocate or friend present when the parade takes place.
2)
That the officer in charge of the case,
although he/she may be present, does not carry out the identification.
3)
That the witnesses do not see the accused
before the parade.
4)
That the accused is placed among at least
eight persons, as far as possible of similar age, height, general appearance
and class of life as himself or herself.
5)
That the accused is allowed to take any
position he/she chooses, and that he/she is allowed to change his/her position
after each identifying witness has left if he/she so desires.
6)
Care to be exercised that the witnesses are
not allowed to communicate with each other after they have been to the parade.
7)
Exclude every person who has no business
there.
8)
Make a careful not after each witness leaves
the parade, recording whether the witness identifies or other circumstances.
9)
If the witness desires to see the accused
walk, hear them speak, see them with his hat on or off, see that this is done.
As a precautionary measure it is suggested the whole parade be asked to do
this.
10)
See that the witness touches the person he/she
identifies.
11)
At the preparation of the parade or during the
parade ask the accused if he is satisfied that the parade is being conducted in
a fair manner and make a note of his/her reply.
12)
In introducing the witness tell them that they
will see a group of people who may or may not contain the suspected person.
Don’t say, pick out somebody” or influence him/her in any way whatsoever.
13)
Act with scrupulous fairness, otherwise the
value of the identification, as evidence will depreciate considerably.
The latest amendments to both the M.C.A (Act
10/98) and the T.I.A (Act 9/98) give the D.P.P power to obtain copies of any
document in the custody of a bank for purposes of carrying out any
investigation into a crime. Bank officials are obliged to immediately handover
the documents to a Police officer not below the rank of Inspector or the D.P.P
[S.225(1) of the M.C.A and S.138(1) of the T.I.A].
Where the original of the document is required
to inspection or carrying out of tests on it, the Bank of officials shall
deliver to the DPP or Police officer not below the rank of Inspector the same
without delay [S.225(2) MCA and S.138(2) TID]. All the above documents shall be
signed for the person receiving them. This Section has effect notwithstanding
the provisions of the Evidence (Bankers Books) Act [S225(6)]of IMCA and
S.138(6) of T.I.A.
CHAPTER 7
INQUESTS
1.
An inquest is an inquisition held by a Coroner
to inquire into the death of a person who has died in prison or police custody
or under suspicious circumstances. It is in the nature of a judicial inquiry
held to establish the circumstances under which such death occurred. Where the
Coroner’s report discloses sufficient evidence to incriminate any person into
the death of any person, the offender may be prosecuted. The law governing
inquests is contained in the Inquests Act, Cap.11.
2.
Power to hold Inquest
A
coroner is a person empowered under the Inquests Act to hold an inquest (S.1 of
the Act). Every magistrate in Uganda is a Coroner by virtue of his/her office
(S.3(11). The Minister of Justice has power to appoint any fit person to hold
an inquest within any specified area. The appointment has to be made by notice
in the Gazette [S.3(3)].
3.
When Inquest Held
Whenever a coroner is credibly informed that a person has died within
their jurisdiction and that there is reasonable cause to suspect that such
person has died in prison or in police custody or while confined in any lock-up
or mental home, he/she is required by S.4(1) of the Act to examine all the
police and other records reasonably available.
If the Coroner is of the opinion that death was due to natural causes
or an accident and was not accelerated by violence or by any culpable or
negligent conduct either on the part of the deceased or any other persons
he/she must record such opinion in the inquest book kept by every magistrates’
court. [S.4(1)(a) of the Act].
If the Coroner is of the opinion that death might have been caused or
accelerated by the violence or any culpable or negligent conduct of any person
other than the deceased, he/she must hold an inquest, unless he/she is
satisfied that an inquest is not likely to be desired by the relatives of the
deceased and that no public benefit is likely to result from the holding of an
inquest in which case he/she must record such opinion in the inquest book.
[S.4(1)(c)].
In addition to the above instances, an inquest must always be held in
the following circumstances [S.4(2)]:
a)
If the deceased died in prison or in police
custody or while confined in any lock-up or mental home;
b)
If the deceased died as a result of a road
traffic accident;
c)
If the deceased died as a result of an
accident in a factory or a mine;
d)
In any case in respect of which he/she is
directed by the High Court to hold an inquest;
e)
In any other class of case in respect of which
the Minister by Statutory Instrument has declared that inquests shall always be
held.
However, if the Coroner is made aware that
criminal proceedings have been or are about to be instituted against any person
in respect of any death, he/she is prohibited from holding an inquest until the
proceedings are concluded. After this the coroner will hold an inquest only if
they think that public benefit will result from so doing. If one is of contrary
opinion, he/she will record such opinion in the inquest book.
4.
Place where inquest is held
An inquest must be held where the dead body is lying irrespective of
where death occurred. It is also the Coroner in whose jurisdiction the body is
lying that has power to hold the inquest. If the body in recovered from a river
or any water, the inquest is held by the Coroner within whose jurisdiction the
body was brought to land (S.7 of the Act). Where a corpse has been destroyed by
fire or is otherwise irrecoverable, an inquest can be held by the Coroner
within whose jurisdiction the death took place, notwithstanding the absence of
the body (S.7).
5.
Power to order exhumation and to postpone burial
A Coroner has power to order exhumation of the body if it appears to
be necessary in the interest of justice (S.5). He/she has also power to
prohibit the burial or cremation of any body lying within his/her jurisdiction
until an inquest is held (S.8).
6.
Power to order post-mortem examination
A Coroner has power to order a post-mortem examination to be conducted
by a government medical officer, or if one is not available, by a medical
practitioner within his jurisdiction. (S.11). The doctor them makes his/her
examination to determine the cause of death and may if he/she thinks necessary
dissect the corpse. He/she then fills in and ~forwards to the Coroner, a report
in the prescribed form (S.3).
7.
Duty to notify death
Any person who finds a body in such circumstance as makes it appear
that the deceased’s death may have been caused or accelerated by violence or
culpable or negligent conduct of any person (including that of the deceased) is
bound, under penalty, to inform the nearest chief or officer in charge of a
police station, and such chief or officer is required to inform the nearest
Coroner. (S.9).
8.
Duty of Police Officer
When a police officer received a report of death, he/she is required
to go to the place where the body in lying and make full investigation into the
circumstances surrounding the death of the deceased and its probable cause.
He/she may also arrest any person reasonably suspected of having caused the
death. [S.10(1) of the (Act]. He/she is required thereafter, without delay to
send a report in the prescribed form to the coroner. [S.10(2)].
If there is no reason to suspect that the death may have been caused
by an unlawful act or omission, the police officer or chief has power to allow
the body to be buried, otherwise he/she sends the corpse to the nearest
hospital or suitable place [S.11(3)].
9.
Procedure at Inquest
At every inquest the coroner is required to record on oath all
evidence available as to the identity of the deceased, and the time, place and
manner of death. (S.13).
The coroner may sit on a public holiday or on a Sunday [S.19(1)] and
may conduct the proceedings in private if he/she thinks it expedient in the
interest of justice so to do. [S.19(2)].
A Coroner is not bound by the law of evidence except those provisions
of the Evidence Act, which relates to the state and professional privilege.
(S.18) A coroner has power to summon witness and to compel their attendance by
warrant of arrest where necessary. [S.15(1)]. A medical practitioner who is
present at the execution of a death Sentence is an essential witness [S.15(33)].
A Coroner may either record the evidence of a witness in the form of a
deposition or receive the affidavit of a witness duly sworn and attested
[S.17(1) and (2)]. If requested by a properly interested person, the Coroner is
required to summon and examine a particular witness whose affidavit is before
the court. [S.17(2)].
If once an inquest has been opened, the
Coroner is of the opinion that sufficient evidence has been disclosed for
instituting criminal proceedings against any person in connection with the
death, he/she must stay further proceedings until the criminal proceedings are
concluded [S.21(1)]. He/she then resumes the inquest unless he/she is of the
opinion that no public benefit will result thereby [S.21(2)]. If at any stage
of an inquest the Coroner considers that there are sufficient grounds to make a
charge against any person in connection with the death into which he/she is
inquiring , he/she has power to order a summons or warrant of arrest to issue
to procure the attendance of that person, before a Magistrates Court with
jurisdiction (S.22 of the Act).
10.
Coroner’s Finding
The Coroner is required to record his/her finding after the conclusion
of the evidence. The finding should contain the following, (S.23):
a)
The name and sex of the deceased,
b)
The residence and occupation of the deceased,
c)
The place where and when the deceased was
found and in what circumstances,
d)
The date of the deceased’s death, and
e)
The cause of death.
If the Coroner has grounds for believing that
an offence has been committed in connection with the death by a person unknown,
he/she sends a report to that effect to the Inspector General of Police (S.24).
If the guilty person remains undiscovered, the Inspector General reports to the
Director of Public Prosecutions. (S.25).
The finding of the coroner with the record of
evidence is forwarded to the High Court and the Registrar of the High Court is
required to take charge of such finding (S.26).
11.
Powers of the High Court
On an application made by the Director of Public Prosecutions in the
High Court has power under S.27 of the Act, if satisfied that it is in the
interests of justice so to do, to make the following orders:
a)
Order an inquest to be held touching on the
death of any person or
b)
Direct any inquest to be re-opened for the
taking of further evidence and the recording of a fresh verdict upon the
proceedings as a whole, or
c)
Quash any Coroner’s verdict substituting
thereof some other verdict which appears to be lawful and in accordance with
the evidence recorded, or
d)
Quash any quest with or without ordering a new
inquest to be held.
12.
Offences
It is an offence for any person to bury or cremate corpses without
authority (S.28). It is also an offence for any person to obstruct medical practitioners,
police officers or chiefs in the execution of their duties under the Act
(S.29). All offences under the Act are punishable by a fine not exceeding
Shs.500.
CHAPTER 8
PREVENTION OF OFFENCES
1. Scope and Purpose of the
Special Procedure
Part II of the M.C.A lays down, in Section 12 to 30 the judicial
procedure for prevention of offences likely to be committed by certain persons
within the local jurisdiction of the court. The purpose of the procedure is to
enable the law enforcement agencies to arrest the situation before the offence
is actually committed. The person suspected to be likely to commit an offence
is brought to court and required to enter into a bond to be of good behavior
and keep the peace for a specified period.
2.
Applicability of the Procedure
There are four instances when this special procedure for prevention of
offences in invoked. These instances are:
a) Where there is information that a person is likely to commit a breach
of the peace or disturb the public tranquility or do any wrongful act that may
probably cause a breach of the peace (S.12 of M.C.A.);
b) Where there is information that a person orally or in writing
disseminates or attempts to disseminate any seditious matter or any matter that
is likely to be dangerous to peace and order in Uganda or disseminates libel
against a judge. (S.13 of M.C.A.);
c) Where there is information that a person is taking precautions to
conceal his presence within the local jurisdiction with a view to committing an
offence or the person is a vagrant in that he/she has no ostensible means of
subsistence, nor can give a satisfactory account of him/herself (S.14 of
M.C.A.).
d) Where there is information that a person is a habitual offender, in
that he/she is by habit robber, thief, house-breaker, receiver of stolen
property or habitually protects or harbours such criminals, or is so desperate
and dangerous as to render his/her being at large without security, hazardous
to the community (S.15 of M.C.A.).
3.
Procedure for Dealing with Suspected Persons
The
jurisdiction in these cases is limited to Chief Magistrates and Magistrate
Grade I. The Magistrate will act normally on information given to him/her on
oath by the Police.
When a
Magistrate is satisfied that it is necessary for the suspected person to show
cause why he/she should not be ordered to execute a bond for keeping the peace
or maintaining good behavior, he/she makes an order in writing to that effect.
(S.16). The order to show cause should contain,
a)
The substance of the information received,
b)
The amount of the bond to be executed,
c)
The terms for which it is to be in force and
d)
The number, character and class of sureties,
if any required.
If a person
in respect of whom the order is made is in court, it should be read over him/her.
If the person
is not in court, the Magistrate should issue a summons or a warrant requiring
him/her to appear before the court. (S.18). The summons or warrant should be
accompanied by a copy of the order to show cause; and shall be delivered by the
officer serving to the person served with or arrested under the same. (S.19).
In certain cases where sufficient cause is shown, the Magistrate may dispense
with the personal attendance of the person called upon to show cause; and may
permit him/her to appear by advocate (S.20).
When the
person is brought in court, the magistrate is required to inquire into the
truth of the information (S.21). The magistrate may take such evidence as may
appear necessary. It is expressly provided that such inquiry should follow, as
nearly as practicable, the procedure prescribed in the M.C.A for conducting
trials and recording evidence in trials before magistrates’ courts. The
magistrate must give the person sufficient opportunity to show cause why he/she
should not be required to enter into the bond before the magistrate decides
that the bond is necessary.
If the
magistrate decides that the bond is not necessary, he/she should make an entry
on the record to that effect and order the release of the person from custody.
(S.22).
4.
Order to Execute bond or give security
If the magistrate finds that it is necessary to execute the bond,
he/she should issue an order to that effect (S.22). However, it is provided
that,
a)
No person shall be ordered to give security of
a nature different from an amount larger than or for a period longer than
specified in the order to show cause;
b)
The amount of every bond shall be fixed with
regard to the circumstances of the case and shall not be excessive;
c)
When the person is a minor, the bond shall be
executed by his/her sureties.
5.
Contents of the Bond
The bond to be executed binds such a person to keep the peace or be of
good behavior, as the case may be (S.25). The term commences to run normally
from the date of the order for the execution of the bond, but the magistrate
‘nay for good reason, fix a later date, or if the person proceeded against is
serving sentence of imprisonment, the term begins at the expiration of the
sentences (S.24 of M.C.A.).
6.
Breach of the Bond
The bond is breached by such persons commission or attempt to commit
or the aiding, abetting, counseling, or procuring the commission of an offence
punishable with imprisonment wherever it may be committed, or in the case where
a person has been required to enter into a bond because of disseminating or
attempt to disseminate seditious matter, the further dissemination or attempt
to disseminate or the abetting of dissemination of any seditious matter or any
matter which is likely, in the opinion of the court, to be dangerous to peace
and order within Uganda.
When the magistrate receives information that the person who has
executed the bond has committed a breach of such bond he/she should, by summons
or warrant, require such a person and his/her sureties, if any, to appear
before him/her and inquire into the information upon which the summons or
warrant has issued. If the Magistrate is satisfied that there is breach of the
bond, he/she must declare the amount of the bond to be forfeited and adjudge
the persons bound thereby to pay the sum in which they are respectively bound.
The magistrate may remit all or part of the sum due. Payment of the sum
adjudged including any costs may be enforced or collected as if it were a fine
imposed after conviction (S.25).
7.
Sureties
The magistrate may refuse to accept any surety offered on the ground
that, for reasons to be recorded, such surety is an unfit person (S.25).
If the person fails to give security he/she may be imprisoned until
he/she gives security or until the term of the bond expires, whichever is
shorter (S.27). If the magistrate imposes a term exceeding one year on a
habitual offender and the latter falls to provide the required security he/she
is detained in prison under warrant pending inquiry and decision of the High
Court. The maximum term of imprisonment for a habitual offender who fails to
give security is three years.
Any surety for another person may at any time apply to the Magistrate
to cancel the bond and upon notice to and appearance of the person, for whom
the surety is bound, the magistrate must cancel the bond and order the person
to give a fresh security. (S.30).
8.
Cancellation of Bond by High Court
The High Court has power at any time to cancel a bond for sufficient
reasons. (S.29 M.C.A.).
CHAPTER 9
ARRESTS
1.
Meaning of Arrest
An arrest is the deprivation of liberty for the purpose of compelling
a person to appear in court or other authority to answer a criminal charge or
to testify against another person. It usually involves the taking of the person
arrested in custody whereby he/she is detained or confined.
The law of arrest attempts to harmonise the competing social interests
based on the need to enforce the law on one hand and the need to respect
individual liberty on the other. While the need to enforce the law takes
precedence over respect for individual liberty, the law of arrest attempts to
balance this precedence by laying down provisions aimed at preventing abuse of
power to take into custody and emphasizing the desirability of keeping the use of
force to a minimum, as well as the need to make arrests a quick and effective
means of ensuring that those arrested are brought before
a court of law to answer the charges against them. Compensation is
payable for unlawful arrest or detention. [See Article 23(7) of the
Constitution].
2.
Method of Arrest
Section 12(1) of the C.P.C provides that in making an arrest the
police officer making the same shall actually touch or confine the body of the
person to be arrested, unless there be a submission to the custody by word or
action.
If such a person forcibly resists the endeavour to arrest him/her or
attempts to evade the arrest, such police officer or other person may use all
means necessary to the effect the arrest. However, there is an important
proviso qualifying the use of force to the effect that nothing contained in
this Section shall be deemed to justify the use of greater force than is
reasonable in the particular circumstances in which it is employed or is
necessary for the apprehension of the offender. [S.12(2) of C.P.C]. In other
words, only reasonably necessary force is allowed to be used in order to effect
an arrest. Excessive or unwarranted force is unlawful.
The person arrested should not be subjected to more restraint than is
necessary to prevent his/her escape. (S.15 of C.P.C).
Where any person is charged with a criminal offence arising out of the
arrest or attempted arrest, by him/her of a person who forcibly resists such
arrest or attempts to evade being arrested, the court should, in considering
whether the means used were necessary or
the degree of force used was reasonable for the apprehension of such
person, have regard to the gravity of the offence which has been or was being committed by such person and the
circumstances in which such offence had been or was being committed by such
person (S.15 of C.P.C). Before use of force is employed, the arresting person
should consider the seriousness of the offence committed and the manner in
which it was committed. If the offence is grave and violence is involved, the
arresting officer may be justified to use deadly force like a firearm to arrest
the offender, or prevent him/her from escaping.
3.
Use of Firearms by Police Officers in Effecting Arrest
Police officers are authorized to use firearms in effecting arrest in
certain circumstances [S.16(1)] of the Police Act. Any police officer may use
any arms against any of the following persons:
a)
Any person in lawful custody charged with a
serious offence (felony) when such person escapes,
b)
Any person who, by force, rescues any person
from lawful custody,
c)
Any person who, by force, prevents the lawful
arrest of him/herself or any other person.
Furthermore, any person who attempts to do any
of the above shall be deemed to have committed the act [S.16(2)].
A police officer is not authorized to resort
to the use of such arms to prevent the escape of a prisoner unless he/she or
any other person is in danger of grievous body harm, and that he/she cannot
otherwise effect such arrest or prevent such rescue. [S.29(3)(C)].
4.
Search on Arrest
The law authorizes the search of the person arrested as well as
his/her residence (S.6). The officer or other person making any arrest has
power to take from the person arrested any offensive weapons which he/she has
on their person, which must be delivered to the court or officer before which
or whom the officer or person making the arrest is required by law to produce
the person arrested. (S.29 of C.P.C).
In any person acting under a warrant of arrest or any police officer
having authority to arrest, has reason to believe that the person to be
arrested has entered into or within any place, the person residing in or being
in charge of such place must, on demand of the arresting person, allow him/her
free ingress (entrances) thereto and
afford all reasonable facilities for a search therein [S.3(1) of C.P.C].
If ingress to such place cannot be obtained as provided above, a
person acting under a warrant or a public officer has power to enter such place
and search it by breaking open any outer or inner door or window in order to
gain entrance [S.3(2) of C.P.C].
5.
Power to Break out for purposes of Liberation
Any police officer or other person authorized to make arrest has power
to break out of any house or place in order to liberate him/herself or any
other person, who having lawfully entered for the purpose of making an arrest
is detained therein (S.4 of C.P.C).
6.
Powers of Arrest
The Criminal Procedure Code contains the major body of law regulating
powers of arrest. The Code gives powers of arrest to police officers,
magistrates and private persons. The Police Act also gives and regulates powers
of arrest by police officers. The Local Governments Act gives power of arrest
to chiefs. (S.69). Uganda Peoples Defense Forces Act 2005 under S.185 gives
powers to the public or member of the army to arrest any member of the armed
forces committing a service offence. Powers of arrest are spelt out in S.185
Act.
7.
Arrest with Warrant
The most solid authority for effecting an arrest is a warrant issued
by the court under Section 56 of M.C.A or S.5 of T.I.A. A warrant of arrest
must be in writing, signed by the judge or magistrate issuing it, bearing the
seal of the court, state the offence charged and order the person to whom it is
issued to apprehend the person against whom it is directed and bring him/her
before the issuing court. [S.56(2) of M.C.A or S.6 of T.I.A].
A Warrant of arrest is issued normally on the ground that a charge has
been laid against any person by a public prosecutor or a Police officer, or has
been drawn up by a magistrate on the basis of a complaint, and that the warrant
is required to secure the appearance of the accused to answer the charge
[S.42(5) of M.C.A]. A Warrant may be issued whether or not a summons has been
issued, [S.54 of M.C.A] e.g. to arrest a person who has refused to answer
summons. A warrant may be directed to a specific police officer or a chief, or
generally to all police officers or chiefs [S.58 of M.C.A or S.7 of T.I.A] and
in some cases to private persons (S.57 and S.58 of M.C.A). A warrant remains in
forces until it is executed or cancelled [S.56(3) of M.C.A or S.6(3) of T.I.A],
and may be executed anywhere in Uganda (S.62 of M.C.A or S.11 of T.I.A).
When executing a warrant, the police officer or other person to whom
it is directed is required to inform the person to be arrested of the substance
of the warrant. (S.61 of M.C.A or S.9 of T.I.A). Where the warrant is made
outside that jurisdiction, and more than twenty miles from the court, the
arrested person should be taken before the magistrate within the local limits
of whose jurisdiction the arrest was made (S.63 of M.C.A). The arrested person
need not be brought to court at all and must be released after the arrest, if
the issuing magistrate has exercised his/her discretion under S.57 of M.C.A to
authorize release with sureties for later appearance, and the arrested person
complies with the conditions for his/her release.
Any invalidity in the warrant or irregularity in the arrest does not
affect the validity of subsequent criminal proceedings. (S.64 of M.C.A or S.12
of T.I.A). Evidence seized or obtained consequent to an invalid arrest may be
admitted in court though the judge has discretion to reject evidence so
obtained to prevent prejudice or unfairness to the accused.
8.
Arrest Without Warrant
Under Section
10 of C.P.C, a police officer is given power to arrest the following persons
without a warrant of arrest:
a)
Any person whom he/she suspects upon
reasonable grounds of having committed a cognizable offence (i.e. one
punishable with imprisonment for one year or more or by a fine exceeding
Shs.4,000 and offence under any law provision of Chapter XVII of The Penal Code
(Nuisances and offences against Health and Convenience) or any offence for
which under any law provision is made for arrest without warrant, [S.10(a) of
C.P.C],
b)
Any person who commits a breach of the peace
in his/her presence, [S.10(b) of C.P.C],
c)
Any person who obstructs a police officer
while in the execution of his/her to escape from lawful custody, [S.10(c) of
C.P.C].
d)
Any person whom he/she suspects upon
reasonable grounds of being a deserter from the Armed Forces of Uganda,
[S.10(e) of C.P.C].
e)
Any person who he/she finds in any highway,
yard, or other place during the night, and whom he/she suspects upon reasonable
grounds of having committed or being about to commit a felony [S.10(f) of
C.P.C].
f)
Any person who he/she suspects upon reasonable
grounds of having been concerned in any act committed in or at any place out of
Uganda which if committed in Uganda would have been punishable as an offence
and for which he/she is under the provisions of any written law, liable to be
apprehended and detained in Uganda, [S.10(g) of C.P.C].
g)
Any person having in his/her possession
without lawful excuse the burden of proving which excuse shall be on such a
person, an implement of housebreaking, [S.10(h) of C.P.C].
h)
Any person whom he/she has reasonable cause to
believe a warrant of arrest has been issued, [S.10(j) of C.P.C].
i)
Any person in whose possession anything is
found which may reasonably be suspected to be stolen property or who may
reasonably be suspected of having committed an offence with reference to such
thing. [S.10(k) of C.P.C].
A police officer in charge of a police station
is given additional powers of arrest without warrant under S.11 of the C.P.C
and may arrest the following:
a)
A person who is suspected to be preparing to
commit a cognizable offence,
b)
Any person who cannot give a satisfactory
account of him/herself or has no visible means of subsistence,
c)
Any reputed or habitual robber, house breaker,
thief or receiver of a stolen property, or who by repute habitually commits
extortion or is in the habit of putting persons in fear of injury.
When any officer in charge of a police station
instructs any subordinate officer to arrest any person without a warrant,
he/she must give the order in writing to the subordinate officer specifying the
person to be arrested and the offence or cause for the arrest. (S.12 of C.P.C).
A police officer knowing of a design to commit
any cognizable offence may arrest, without orders from a magistrate and without
a warrant, the person so designing, if it appears to such officer that the
commission of the offence cannot otherwise be prevented (S.26 of C.P.C).
9.
Arrest on Refusal to Give Name and Residence
When any person who has committed an offence in the presence of a
police officer or has been accused of committing a non-cognizable offence,
refuses to give on demand, his/her name and residence or gives a name of
residence which is false, he/she may be arrested by such officer in order that
the name or residence may be ascertained [S.13(1) of C.P.C].
When the true name and residence of such person have been ascertained,
he/she should be released on his/her executing a bond with or without sureties,
to appear before magistrate if so required [S.13(2) of C.P.C].
Should the true name and residence of such person not be ascertained
within twenty-four hours from the time of arrest, or should he/she fail to
execute the bond or, if so required, to furnish sufficient sureties, he/she
should forthwith be brought before the nearest magistrate having jurisdiction
to entertain the case. [S.13(3) of C.P.C].
10.
Arrest by Magistrates
Any magistrate may at any time arrest or
direct the arrest in his/her presence, within the local limits of his/her
jurisdiction, of any person for whose arrest he/she is competent at the time
and in the circumstances to issue a warrant. [S.20 of C.P.C].
When any offence is committed in the presence
of a Magistrate within the local limits of his jurisdiction, he/she may
him/herself arrest or order any person to arrest the offender and he/she may
thereupon commit the offender to custody or release him/her on bail. [S.19 of
C.P.C].
11.
Arrest of Army Personnel
Under the National Resistance Army Act No.3 of 1992, S.71 provides for
arrest of soldiers found committing a service offence or capital offences like
murder, treason and rape.
The ordinary arresting officer is the commanding officer of the unit
to which the suspect belongs, although if it is impracticable for him/her to
effect the arrest, any member of the Army of a rank equal or lower to that of
the suspect may effect the arrest [S.71(2)].
The Statute also gives powers of arrest for commission of a service
offence to the general public under S.71 (3).
Where an army officer is wanted to answer to charges of capital
offences specified in the Section, then any soldier may without a warrant,
arrest that person.
12.
Arrest by Local Administration Police Officers
The Police Act, Cap.303 provides in S.67 that the Local Administration
Police 4tgb Force shall be under the Local Government system but matters of
standardization and training are left to the Inspector General. It does not
specify the powers of arrest.
13.
Arrest by Chiefs
The Local Governments Act Cap.243 provides in S.69(3) inter alia that
it shall be the duty of a chief within his/her area of jurisdiction to obey and
execute orders and warrants issued by any court of competent jurisdiction,
assist in the maintenance of law, order and security, assist in the prevention
of crime and public nuisance, and detect, apprehend and bring offenders to
justice.
14.
Arrest by Private Persons
Private persons have less powers of arrest than police officers. Any
private person may arrest any person who in his/her presence commits a
cognizable offence (i.e. punishable with imprisonment for a maximum period of
one year or more) or whom he/she reasonably suspects of having committed a
felony (A serious offence punishable with imprisonment for three years or
more). [S.15(1) of C.P.C]. Persons found committing any offence involving
injury to property may be arrested without a warrant by the owner of the
property or his/her servants or persons authorized by him/her. [S.15(2) of
C.P.C].
15.
Duty of Public to Assist in Arrest
Every person is bound under Section 23 of
C.P.C to assist a magistrate or police officer reasonably demanding his/her aid
in the following circumstances:
a)
In taking or preventing the escape of any
person whom such magistrate or police officer is authorized to arrest,
b)
In the prevention or suppression of a breach
of the peace or in the prevention of any injury attempted to be committed to
any railway, canal, telegraph or public property.
16.
Recapture of Person Escaping
If a person is lawful custody escapes or is rescued, the person from
whose custody
He/she escapes or is rescued, may immediately pursue and arrest
him/her in any place in Uganda. [S.21 of C.P.C].
17.
Disposal of Persons Arrested
A police
officer making an arrest without a warrant must, without unnecessary delay take
or send the person arrested before a magistrate having jurisdiction in the case
or before an officer in charge of a police station [S.14 of C.P.C].
The Police
Act also provides in S.13(1) that a police officer arresting a suspect without
a warrant shall produce the suspect, before a magistrate’s court within 48
hours unless earlier released on bond.
If this is
not complied with, S.13(3) goes on to provide that any person may apply to a
magistrate within 24 hours, who shall order his/her release unless charged.
Subsection (4) further provides for a
magistrate to investigate any complaint of torture of a suspect in custody of
the allegation is proved to be true, the magistrate shall order for the
examination and treatment of that person and whoever is responsible for the
torture shall be charged. This Section is vital in helping prevent torture in
police cells and during interrogation.
Any private person arresting any person without a warrant must without
unnecessary delay take or handover the person so arrested to a police officer
or in the absence of a police officer to the nearest police station [S.16(1) of
C.P.C].
It is the duty of the officers in charge of police stations to report
to the nearest magistrate within twenty-four hours the cases of all persons arrested
without warrant within the limits of their respective stations, whether such
persons have been admitted to bail or otherwise. [S.18 of C.P.C].
The Constitution further provides in Article 23 (4)(a)(b) that where a
person is arrested or detained he/she shall if not earlier released, be brought
to court as soon as possible but in any case, not later than forty-eight hours
from the time of his/her arrest.
This in effect amends S.18 of the CPC by giving the police another
twenty-four hours within which to charge the suspect in court or else the
continued detention is illegal; and could lead to civil action for false
imprisonment.
18.
Detention of Persons Arrested without Warrant
Police officers are given power to release on bond a person arrested
without a warrant, if it is not possible to take the person before a magistrate
within twenty-four hours. In this connection it is provided is Section (17(1)
if C.P.C that when any person has been taken into custody without a warrant for
an offence other than murder, treason or rape, the officer in charge of a
police station to which such person is brought may in any case and must, if it
does not appear practicable to bring such person before an appropriate
magistrates court within twenty four hours after he/she was taken into custody,
inquire into the case, and unless the offence appears to the officer to be of a
serious nature, release the person on his/her executing a bond, with or without
sureties, for a reasonable amount to appear before a magistrates court at
a time and place named hi the bond. Where any person is detained in custody
he/she must be brought before a magistrate as soon as practicable. However, an officer in charge of a police
station has power to discharge any person arrested on suspicion on any charge
when, after due police inquiry, insufficient evidence is, in his/her opinion,
disclosed on which to proceed with a charge.
Where a person has been taken into custody and it appears to the
police officer in charge of the police station to which such a person is
brought that the inquiry into their case cannot be completed forthwith, he/she
may release that person on executing a bond with or without sureties, to appear
before a magistrate’s court at a time and place named in the bond. [S.17(2) of
C.P.C].
19.
Preventive Action by the Police
Every police officer may interpose for the purpose of preventing and
shall to the best of his/her ability prevent, the commission of any cognizable
offences (S.24 of C.PC.).
Every police officer receiving information of a design to commit any
cognizable offence shall communicate such information to the police officer to
whom he/she is subordinate, and to any other officer whose duty is to prevent
or take cognizance of the commission of any such offence. (S.25 of C.PC.).
A police officer may on his/her own authority interpose to prevent any
injury attempted to be committed in his/her presence to any public property,
moveable or immovable, or the removal of or injury to any public landmark or
buy or other mark used for navigation (S.27 of C.P.C.).
The Police Act provides under S.24 that a police officer can arrest
and detain person if he/she believes that action is necessary to prevent that
person:
a) from causing physical injury to him/herself or
any other person,
b) from suffering physical injury,
c) from causing loss or damage to property,
d) from committing an offence against public
decency in a public place,
e) from inflicting harm or undue suffering to a
child or other vulnerable person.
Furthermore
S.23 of the Act permits a police officer without a warrant or court order to
arrest a person if he/she reasonable cause to suspect that the person has
committed or is about to commit an arrestable offence.
A person
arrested without a warrant must be produced before a magistrates’ court within
48(forty-eight) hours unless earlier released on bond. (S.25 of Police Act).
CHAPTER 10
SEARCHES
1.
Definition of Search
A search may be defined as an inspection made on a person or in a
building for the purpose of ascertaining whether anything useful in criminal
investigation may be discovered on the body of the person or in the building
searched.
A search is carried out for the purpose of collecting evidence and
exhibits which may be used in a criminal trial. A search may be carried out in
any place whether it may be within premises or outside, or in a vehicle.
Normally, searches are carried out on the authority of search warrants
issued by the court, but police officers are empowered to search without
warrant in certain cases.
2.
Search of Arrested Person
A police officer has power to search any person who has been arrested
and to take possession of anything found on such a person, which might
reasonably be used as evidence in any criminal proceedings. (S.16(2) of C.P.C.).
Whenever a person is arrested without a warrant, by a private person
under a warrant, and the person arrested cannot be released on bail, the police
officer making the arrest or re-arrest has power to search such a person and
place in safe custody all articles other than necessary clothing, which are
found on him/her. (S.16(1)(b) of C.P.C.).
A police officer or any person making the arrest has power to seize
any offensive weapons found with an accused person (S.9 of C.P.C.).
Whenever it is necessary to search a woman, the search must be carried
out by another woman with strict regard to decency. (S.8 of C.P.C.).
3.
Search of Premises of Arrested Persons
When a police officer has reason to believe that material evidence can
be obtained in connection with an offence for which an arrest has been made or
authorized, he/she may search the dwelling or place of business of the person
arrested, or of the person for whom the warrant of arrest has been issued, and
he/she has power to seize anything which might reasonably be used as evidence
in any criminal proceedings. (S.69 of M.C.A). If the person to be arrested
enters any building or place, the arresting officer or person has power to
enter the premises and search them (S.3 of C.P.C.).
4.
Power to Stop and Search Persons and Vehicles
Any police officer has power to stop, search or detain any vessel,
boat, aircraft or vehicle where he has reason to suspect that anything stolen
or unlawfully obtained may be found. A police officer has similar powers in
respect of any person who may be reasonably suspected of having in his
possession or conveying in any manner anything stolen or unlawfully obtained.
The police officer is authorized to seize such a thing. (S.7(1) of C.PC.).
5.
Search by Police Officers during Investigations
The Police Act provides the following in relation to searches:
Under S.26, a police officer may detained search a person or vessel,
boat, aircraft or vehicle in which he/she has reasonable grounds to believe
that stolen or unlawfully obtained property may be found; and may seize that
property. This is without prejudice to S.7, Criminal Procedure Code and 315 of
the Penal Code.
Where a police officer of the rank of Sergeant and above believes that
anything necessary for investigations in a case he/she is investigating may be
found in a place and must be secured immediately, he/she may search for that
thing after recording those reasons. Where practicable, he/she should conduct
the search in person: S.27(1) and (2) of the Police Act.
Where one is unable to carry out the search in person he/she can
authorize (in writing) an officer subordinate to him/her to carry out the
search. However, reasons must be recorded for delegating this job. The
provisions of the CPC that relate to searches apply to this Section: [S.27(3)
and (4)]. Copies of the record made under Sub sections (1) and (3) shall be
sent to the nearest magistrate and owner or occupier of the place searched,
(Sub section 5).
Local leaders and the occupant of the place to be searched shall be
permitted to attend the search, (Sub section 6).
Notwithstanding the provisions of this Section or provisions of the
CPC, no police officer shall search any premises unless he/she has a search
warrant issued under provisions of the CPC or has a warrant card in such form
as shall be prescribed by the Inspector General, (Sub section 7 of S.27).
The police officer must show his/her warrant card on request by the
owner/occupier of the premises to be searched, (Sub section 8). The search
shall be conducted in a humane manner with avoidance of unnecessary damage or
destruction to property, (Sub section 9).
Furthermore, a police officer lawfully on any premises or any other
place may seize anything he/she believes might be used as an exhibit in
relation to an offence being
investigated [S.29(1)(a)] and he/she shall record this fact (of seizure)
as well as a description of the property and sign this record, together with
the occupant. A copy shall be retained by the owner [S.29(2) Police Act].
6.
Search Warrant
A search warrant is a written authority given by a court ordering the
search of the premises, place or vessel named in the warrant for the purpose of
seizing anything therein which is required or material in the investigation of
an offence.
A search warrant must be signed
by the magistrate issuing it, and must bear the seal of the court. [S.56(1) and
S.74 of M.C.A]. Every such warrant remains in force until it is executed or
until it is cancelled by the court which issued it [S.56(3) of M.C.A].
7.
Power to Issue Search Warrant
If it is proved on oath to a magistrate court that anything which is
necessary to the conduct of investigation into any offence is in a building,
vessel, carriage, box, receptacle or place, the court has power to issue a
search warrant authorizing the person whom it is directed to search such place
for such a thing. The place to be searched for is found, the person carrying
out the search is empowered to seize and carry it to the court which issued the
search warrant or some other court to be used as an exhibit. (S.70 of M.C.A).
8.
Execution of Search Warrants
A search warrant may be directed to one or more police officers or
chiefs named therein or generally to all police officers and chiefs. However,
where the immediate execution of search warrant is necessary and no police
officer or chief is available, the issuing court may order any other person to
carry out the search. Where a search warrant is directed to more than one
officer or person, it may be executed by all or any one of them (S.58 of
M.C.A).
A search warrant directed to a police officer may also be executed by
any other police officer whose name is endorsed upon the warrant by the officer
to whom it is directed or endorsed. The position is the same as regards chiefs.
(S.50 of M.C.A).
Every search warrant may be issued and executed on a Sunday. It must
be executed between the time of sunrise and sunset, although the court has
power to authorize the police officer or other person to whom it is directed to
execute it at any hour. (S.71of M.C.A
9.
Search of Closed Places
Whenever any building or other place liable to be searched is closed,
any person residing in or being in charge of such building must, on demand of
the officer or person executing the search warrant, and on production of the
warrant, allow him/her free entrance and exit from the building. The person in
charge of the building is also required to afford the person searching all
reasonable facilities for the search. (S.72 of M.C.A).
If entrance or exit is not allowed, the person executing the warrant
is authorized to break in or break out of the building [S.72(2) of M.C.A and
Section 3 and 4 of C.P.C].
If any person is found in or near the building to be searched, and is
reasonably suspected of concealing on his body any article for which a search
should be made, such person may also be searched. If the person is a woman, she
must be searched by another woman. [S.72(3) of M.C.A and Section 8 of C.P.C].
10.
Detention of Property Seized
When anything is seized and brought before a court, it may be detained
until the conclusion of the case or the investigation. Reasonable care must be
taken for its preservation. [S.73(1) of M.C.A].
If any appeal is made, or if any person is committed for trial, the
court may order it to be further detained for the purpose of appeal or the
trial, S.72(2). If no appeal is made, or if no person is committed for trial,
the court must direct such thing to be restored to the person from whom it was
taken, unless the court sees fit, or is authorized, to dispose of it otherwise.
[S.73(3) of M.C.A].
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