ASSESSORS

Section 3 of the TIA provides that except as provided by any other written law, all trials before the high court must be with the aid of assessors, whose number must be two or more.

According to Douglas Brown in his book criminal procedure in Uganda and Kenya at pg 137, An assessor in law is a person who is appointed to advise the judge. Although the number of assessors at a hearing must be two or more, the practice in the high court has always been to restrict it to two. Assessors are lay people selected in the locality by the chief magistrate in the area. They must be persons with a very good reputation in their areas. The assessors selection, qualification and attendance are governed by the assessors rules set out in the schedule to the trial on indictment act. Under the schedule, every chief magistrate is required to prepare, before the first day of the month of March in each year, a list of persons in his magisterial area who qualify to serve as assessors. Rule 1 of the assessors rules.

The list of assessors must be posted at the at the court house for inspection by the public and any person who wishes to object to a particular person being included on the list of assessors may do so. Rule 3(1). Any such objection is heard and determined by the chief magistrate or a magistrate grade I of the area.

After the hearing of the objections about a persons suitability to serve as an assessor, the chief magistrate will amend the list and strike out the name of the person not suitable, in his judgment to serve as an assessor. Rule 4(1). A copy of the list so revised shall then be sent to the chief registrar. Rule 4(2). The list so prepared shall be again revised once in every year and if any person suitable to serve as an assessor is found in any magisterial area after the list has been settled, her name will be added to the list by the chief magistrate of the area. Rule 4 (4)

WHO IS ELIGIBLE TO SERVE AS AN ASSESSOR?

All citizens in Uganda who are not exempted and who area between the ages of 21 and 60 and who are able to understand the language of the court with a degree of proficiency sufficient to be able to follow the proceedings shall be liable to serve as assessors at any trial held before the high court. Rule 2 (1).  

• Must be a citizen of Uganda
• Between the ages of 21 and 60
• Must understand the language of the court  English

The following persons are exempt from liability to serve as assessors. Rule 2 (2)

• Persons actively discharging the duties of priests or ministers of their respective religions
• Medical practitioners, dentists and pharmacists in active practice
• Legal practitioners in active practice
• Members of the armed forces on full pay (it is not clear why these categories of people are exempted from serving, perhaps as these are professions or callings which require active and full attention, it might not be easy for those concerned to perform fully their duties as assessors which frequently involve long sittings, with out causing serious disruptions in their normal duties)
• Members of the police forces or of the prison services
• Persons exempted from personal appearance in court under under the provisions of any written law for the time being in force, relating to civil procedure- diplomats, president.
• Persons disabled by mental or bodily infirmity (these are exempted for obvious reasons- an assessor must be able to understand and follow the proceedings and must also be able to stand for long hours
• Persons exempted from serving by statutory instrument made by the minister challenging the appointment of an assessor.

According to section 67 of the TIA, assessors must be sworn in at the commencement of the trial but after the preliminary hearings and after the accused has pleaded to the indictment. According to section 68, before assessors are sworn the accused and or his advocate and the advocate for the prosecution have the right to challenge the propriety of the choice of a particular assessor. They can do so on the following grounds;

1. presumed or actual partiality- an assessor who goes to court with a pre conceived idea as to what the judgment of the court should be even before hearing the evidence is not what is required or expected of an assessor or an assessor who has an interest in the case
2. personal cause such as infancy, old age, deafness, blindness or infirmity
3. his or her character in that he or she has been convicted of an offence, which in the opinion of the judged renders him unfit to serve as an assessor
4. his or her inability adequately to understand the language of the court

According to section 68 (2) TIA, when a challenge is disputed, it becomes a triable issue and the person challenged may be examined by the court as to the allegations about his incompetence. See case of Ndirangu s/o Nyagu v R [1959] EA 875

ABSENCE OF ASSESSORS

According to section 69 of the TIA, if in the course of the trial and before verdict an assessor is from sufficient cause un able to attend through out the trial or absents himself, and it is not practicable immediately to enforce his attendance, the trial shall proceed with the aid of the other assessors.

According to section 69(2) TIA, if more than one of the assessors are prevented from attending or absent themselves, then the proceedings shall be stayed and a new trial shall be held with the aid of different assessors.

SUMMING UP TO ASSESSORS

At the end of the evidence for both the prosecution and the defence, the judge will be required to sum up the law and the evidence in the case to the assessors and shall require each of the assessors to state his or her opinion orally and shall record each such opinion. S. 82(1) TIA.

As far as summing up to the assessors is concerned, it should be done in simple language.  In the case of Godfrey Tinkamalirwa and another v Uganda, it was stated that some of the matters which the judge should direct the assessors on are;

1. the contradictions and inconsistencies in the evidence
2. the weight to be given to certain pieces of evidence e.g evidence of a hostile witness
3. when court may base a conviction on identification by a single witness
4. when court may rely on circumstantial evidence, etc

see charles kayumba v Uganda

In the case of Uganda v Charles Kangameito, it was stated that it is improper for assessors to form their opinions before hearing counsels submissions and the summing up.

OPINION OF ASSESSORS

After summing up, the judge will request each assessor to give her opinion orally and then the judge will record such opinion. S.82 TIA. The assessors may retire to consider their opinions after summing up and if they so wish and during such retirement, they may consult with one another. S.82(4) TIA.

It should be pointed out that the assessors opinions are not binding on the judge but where the judge doesnt conform to the opinions of the majority of assessors, she shall state her reasons for departing from departing from their opinions in her judgement. S. 82(3) TIA.

THE ROLE OF ASSESSORS IN CRIMINAL TRIALS.

As already pointed out the opinion of assessors is not binding on the judge. The question then arises, what then is their role in criminal trials?

The assessors role in the colonial days was to advise the colonial judges on questions of fact and custom. They were present to protect against a possible miscarriage of justice. The functions of assessors appear to be two fold; the duty to assess and advise- they assess or weigh the evidence as a whole and decide whether the accused is guilty or not in the light of their special knowledge as to the habits, customs, modes of thought, and language of the particular society from which the accused comes. Assessors may be able to tell from the accused demeanour that the accused or witness is telling a lie which may escape the presiding judges mind.

Assessors also have a duty of advising the judge on matters upon which they have special knowledge.

Briefly here we shall have to look at the following sections under the law.

Section 3 on the definition of who an assessor is. Section 67 on when to  swear in the assessors that s at the comessment of the trials

Under section 68 on the aspect of  the advocate or the accsed or the advocate of the  prosecution can  challenge the personality of the assessor.

Under section 69 in case one or more of the assessors is not available  or in case he absents hm self  the its advisable that  the proceedings be restarted.

Under rule 1 of the assessors rules under the  TIA the chief magistrate is required to  carry out appointments annually in every month of march. And underrule 3.in case the personality of an assessor has been attacked then it is the chief magistrate or the magistrate grade one n the area to entertain the matter during the appointments.  And according to rule 4 of the assessors rules yofind that the chief magistrate is empoweredtoake firther appointments during the year andforward sch names to be considered  or taken has assessors.

And  also under section 82 .4 the assessers have rght to retire first and go and consult each other   before gving their evidence and also under secton 82.3. the udge has to give areason for not taking the assessors opinions.