TOPIC ONE: JURISDICTION

What is criminal jurisdiction?

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

CRIMINAL JURISDICTION OF COURTS

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

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

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

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

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

Other circumstances where the Supreme Court can entertain an appeal are as follows;
a) An appeal from a sentence or order other than one fixed by law

b) Where the appeal emanates from a judgment of a Chief Magistrate or Magistrate Grade
One, in the exercise of their original jurisdiction and either the accused person or the D.P.P
has appealed to the High Court or the Court Of Appeal, the accused or the D.P.P may lodge a
third appeal. Here, the Supreme Court shall give a declaratory judgment. This is a judgment
which conclusively declares pre-existing rights of the litigant without the appendage of any
coercive decree.
c) Where the person under the age of 18 is subject to the order of the minister having been
found guilty of an offence punishable by the death sentence.
THE COURT OF APPEAL
This consists of the Deputy Chief Justice and Justices of appeal not less than 7. It shall
be constituted of an uneven number not less than 3 (See Art 134 -136 of the Constitution
and also Sections 9 -13 of the Judicature Act.) This court entertains appeals from the
High Court.
HIGH COURT OF UGANDA
It is established under Art 138 of the Constitution and sec 15 of the Judicature Act. It
consists of the Principle Judge and 25 or more judges as Parliament may prescribe.
ORIGINAL JURISDICTION OF THE HIGH COURT
The High Court has unlimited original jurisdiction throughout Uganda. Under Section 1 of
the T.I.A, the High Court has jurisdiction to try any offence under any written law and
may pass any sentence authorised by law. However no criminal case can be brought
under the cognizance of the High Court for trial unless the accused person has been
committed for trial to the High Court after holding preliminary or committal proceedings.
SENTENCING POWER
Under Sec 2 T.I.A, the High Court may pass any lawful sentence combining any of the
sentences which it is authorised by law to pass.
APPELLATE JURISDICTION

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

Revisionary powers provided under sec 47, 54 of the C.P.C.A

Confirmation of sentences, section 173 of the M.C.A

Transfer of cases, sec 41 M.C.A

Reservation of questions of law, sec 206 M.C.A

THE CHIEF MAGISTRATES COURT

The original jurisdiction is provided under sec 161 MCA.

Sentencing powers. This is provided under sec 162(a)
Appellate jurisdiction. The Chief Magistrate hears appeals from the decisions of
magistrates grade 2.
Supervisory powers. See sec 221 M.C.A which provides that the Chief Magistrate shall
exercise general powers of supervision of all magistrates courts with in the area of
jurisdiction.
Transfer powers. Under sec 170 M.C.A a Chief Magistrate may transfer any case for trial to
another magistrate in the area or to himself.
MAGISTRATE GRADE 1
Criminal jurisdiction; See sec 161 M.C.A which provides that a grade 1 magistrate may try
offences other than offences whose maximum penalty is death or life imprisonment.
Sentencing powers of Grade 1; sec 162 of the M.C.A provides that a Grade 1 may pass a
sentence of imprisonment not exceeding 10 yrs and a fine not exceeding 1 million or both
such imprisonment and fine. NB Read together with the Amendment Act.
MAGISTRATE GRADE 2

Criminal jurisdiction; Sec 161(1)(c) M.C.A provides that a grade 2 may try any offence and
shall have jurisdiction to administer and enforce any provision of any written law other
than the offences and provisions provided under schedule 1 of the M.C.A.
Sentencing powers; Sec 162 (1)(c) provides that a grade 2 may pass a sentence of
imprisonment for a period not exceeding 3yrs or a fine not exceeding 500,000/= or both
such imprisonment & fine.
MAGISTRATE GRADE 3
This was the lowest class of magistrates. Criminal jurisdiction was provided under sec
161(1)(d) M.C.A which provided that a grade 3 might try any offence under the law and
had jurisdiction to administer and enforce any provision of any written law other than
offences and provisions as provided under schedule 1 & 2 of the M.C.A.
Sentencing powers; These were provided under sec 162(d) A grade 3 might pass a
sentence for a period not exceeding 1 year or a fine not exceeding 250,000/= or both such
imprisonment and fine.
NB The Amendment Act has removed this grade.

TOPIC TWO: EXTRADITION

This applies when a suspect or an accused person flees Uganda and goes to another
country. Such a person can be brought back by extraditing him to answer charges in
Uganda.
Therefore, extradition is a process of surrendering a fugitive offender to the country in
which he has committed the offence for the purpose of having him tried for the offence he
has committed.
For an offender to be extradited from another state there must be a reciprocal
arrangement either by agreement or by legislation. Whenever an extradition agreement is
signed, the details as to the procedure of extradition are provided for in an Extradition
Act.

In Uganda, the law applicable is the Extradition Act Cap 117 laws of Uganda. This Act
consolidates the law relating to the extradition of persons accused or convicted of crimes
committed with in the jurisdiction of another country. This Act contains two parts.
According to sec 3 of the Act, part 1 of the Fugitive Offenders Act 1881 of the U.K applies
to the countries to which part 1 of the Uganda Fugitive Offenders Act applies.
This means that Uganda adopted extradition agreements signed by the U.K and other
countries before her independence. A list of countries where Uganda is a party is provided
for under Statutory Instrument No. 103 of 1966.
Part 2 applies to East African countries by virtue of S.I 235 of 1964. We do not have
extradition agreements with countries like Sudan and DRC. What happens when an
offender runs to such countries? Sec 5 of the Penal Code Act will apply.

PROCEDURE OF EXTRADITION
Restrictions on surrender of criminals;
This is provided under sec 2 of the Act, a fugitive criminal will not be surrendered if the
offence for which the extradition is sought is one of a political character.
What is the meaning of an offence of a political character?
The Act does not define what an offence of political character is all about. This depends on
the discretion of the Court or the Minister. The test of what amounts to an offence of a
political character was applied in the case of RE CASTON, Lord Denning in defining an
offence of a political character held that in order to bring the case in the words of the Act
and to exclude extradition offences, it must be shown that the Act is done in furtherance
of, done with the intension of assistance or as a sort of act, in sort of acting in a political
manner.
Apolitical rising, a dispute between 2 parties in the state as to which to have the
government in its hands, therefore, it can be brought with in the meaning of the words in

the Act. Parkinson J held that the expressions political Expression / political character
mean incidental or forming part of a political disturbance.
The procedure
Say if a Ugandan has committed an offence in Kanungu Rukungiri and thereafter runs to
Kenya, a magistrate in Kanungu will issue a warrant of arrest on the application by the
police.
The warrant of arrest is brought to the CID head quarters. After perusal, at the CID, it is
forwarded to the AG for authentication. The file is then sent to Interpol, who will then
organise to bring the fugitive criminal back to Uganda. The Interpol officer will go to Kenya
and report to their Interpol office. The police there will peruse through the file to
determine whether the offence is extraditable, and whether it is stipulated under the
Treaty and their laws.
Thereafter, the Kenyan police will apply to court for a provisional warrant of arrest on
which the fugitive is to be arrested. The issue of an offence of political character normally
arises at this point. After arrest, the fugitive is taken to court, where he will be handed
over to Uganda for trial. See s.15, 17 & 18 of the Extradition Act.
Extraditable offences are covered under Schedule 1 of the Extradition Act. See also
offences agreed upon in the Treaty. Bigamy is extraditable.
CRIMINAL SUMMONS
This is one way of compelling an accused person to appear in court to answer charges. In
other words summons is a document issued by a court not by a person, calling upon a
person to whom it is directed to appear before a judge or officer of the court.
FORM & CONTENT OF SUMMONS
These are covered under sec 44 of the M.C.A. Every summon issued by a Magistrates
Court must be in writing, in duplicate , signed and sealed by a magistrate or by such
other officers as the Chief Justice may direct from time to time. It must be directed to the
person summoned with his name and should require him to appear at a time and a place
therein appointed before a court having jurisdiction to inquire into and deal with the
complaint or charge. It must state shortly the offence against which the person
summoned is charged.

SERVICE OF SUMMONS.
This is covered under sec 45 of the M.C.A, under this section, summons are served by a
police officer or by an officer of the court issuing it or other public servant. If practicable,
the summons must be served to the accused personally by delivery or tendering to him
the duplicate of the summons, then the accused must sign a receipt thereon at the back
of the original of the summons.
What happens if a person can not be traced?
Under sec 46 M.C.A, where the person summoned can not be traced after the exercise of
due diligence, the summons may be served by leaving the duplicate with any adult
member of the family, by leaving it with another member of the family or with a servant
living with him or with his employer. This person is also required to sign at the back of the
original summon and if he cannot afford signing may be due to incapacity, the serving
officer can swear an affidavit to that effect.

What if the procedure of service is not effected?

This is provided under sec 47 M.C.A. The serving officer shall affix the duplicate of the
summons to some conspicuous part of the house or homestead in which the person
summoned ordinarily resides. By doing this, the summons shall be deemed to have been
duly served.
What if the person summoned cannot be traced?
Section 50 of the M.C.A provides that summons can be served at any place in Uganda.
How does one do this practically? How would u serve a government servant? This is
provided under sec 48 M.C.A, that service can be effected by issuing summons and
sending it in duplicate to the head of department where the person is employed. The head
of department should also sign and the signature shall be the evidence of service of the
summons.
How would you serve a soldier who committed an offence in Uganda and has been
deployed in Congo? You serve the commanding officer.
SERVICE ON A COMPANY

This is provided under sec 49 M.C.A, where by service of summons on an incorporated

company or any other body corporate may be effected by serving it to the Company
Secretary, Manager or a Principle Officer and by a registered letter addressed to the Chief
Officer of the corporation at the registered office of the company. It is deemed to be
effected when the letter would arrive in ordinary course of post.
How do you serve an un incorporated company?

How do you prove that summons were effected?

By calling the Process Server to give evidence on oath that service was effected ( Affidavit)
By calling the person with whom the summons were left and by producing the original
summons dully endorsed (Signed).
By swearing an affidavit to prove certain facts such as the affixation of the duplicate to
some conspicuous part of the accused residence, hiding or refusal to sign the person
summoned.
ARRESTS
To arrest a person is to deprive him of his liberty by a lawful authority for the purpose of
compelling his appearance to answer a criminal charge or as a method of execution. Arrest
involves the taking of the person arrested in custody whereby the person is detained or
confined in a certain place.
CONSTITUTIONAL PROVISIONS FOR ARREST
According to Art 23 of the Constitution, no person should be deprived of personal liberty.
Once restricted or detained, one has to be kept in a place authorised by law. The
Constitution further requires that a person arrested or detained should be informed
immediately in a language he understands, the reasons for his arrest and his right of a
lawyer of his own choice.

CIRCUMSTANCES UNDER WHICH A PERSON CAN BE ARRESTED:

1. For purposes of bringing him to court or before court in execution of a court order.
2. Where there is reasonable suspicion of his / her having committed or being about to
commit an offence under the laws of Uganda.
What happens after the person accused has been arrested?
The accused if not released earlier, the arrested person must be brought to court as soon as
possible but in any case not latter than 48 hrs from the time of arrest.
What if the accused person is arrested on a Friday? What is the remedy if you are unlawfully
arrested? Under Art 23(7), a person who is unlawfully arrested or detained by any other
person or authority shall be entitled to compensation from that other person or from the
state.
What if you are arrested and not brought to court? Art 23(9) provides that a person has a
right for an order of habeas corpus. This is basically a prerogative writ directing a person
who has been detaining another person in custody commanding him to produce or have the
body of the person arrested and produced in court.
WAYS OF ARRESTING A PERSON
a) Arrest with warrants of arrest;
This is provided under sec 56 of the M.C.A or sec 5 of the T.I.A. The warrant must be in
writing as per sec 56 M.C.A, signed by the judge / magistrate issuing it and must bear the
seal of court. It must be directed to a person ordering him to arrest a person described in
the warrant to bring him before the court having jurisdiction and it must state briefly the
charge against that person and describe his details.
A warrant of arrest may be directed to the following people:

A specific police officer or generally all police officers or a chief (individual chief) or a

private person eg land holder, farmer or manager of land with in the local limits of the
jurisdiction of the chief magistrate. See sections 58, 59 and sec 7 T.I.A.
How then does one define local council officials? They can arrest as private persons.

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

PROCEDURE OF EXECUTING A WARRANT OF ARREST

Under sec 61 M.C.A or sec 10 T.I.A when executing a warrant, a police officer or other

person executing it is required to inform the person to be arrested the substance of the
warrant.

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

necessary delay.

Under sec 63 M.C.A, where the arrest is made out side the local limits of the

jurisdiction of the court which issued it, and more than 20 miles from the court, the
arrested person should be taken before the magistrate within the local limits of whose
jurisdiction the arrest was made. This is to prevent prejudice or unfairness to the accused.
METHODS OR WAYS OF ARRESTING A PERSON.
According to sec 2(1) C.P.C.A, in making an arrest, the police officer making the same shall
actually touch or confine the body of a person to be arrested unless there is submission to
the custody by word or action.
What if the person resists arrest?
Under sec 2(2), if a person forcibly resists the Endeavour to arrest him or attempts to evade
the arrest, such police officer may use all the means necessary to effect arrest. However, the

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force used in the circumstances should be reasonable, what is reasonable is a question of

fact. Therefore only reasonable force is allowed in order to effect an arrest. Otherwise
excessive force is unlawful. In determining the degree of force to be used, the arresting
officer needs to consider the following;

The seriousness of the offence committed.

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

303, a police officer may use a fire arm under the following circumstances;
a) where the person charged with or convicted of a felony escapes from lawful custody
b) The person who through force rescues another from lawful custody.
c) The person who through force prevents the lawful arrest of himself or another person.
In using force, the police officer must have the following grounds;

The police officer has reasonable grounds to believe that he cannot otherwise

prevent any act or effect the arrest.

The police must have issued a warning to the offender that he is going to resort to

the use of arms and the offender does not heed to the warning.

That the police officer has reasonable grounds to believe that he or any other

person is in danger of grievous bodily harm if he does not resort to the use of arms.

ARREST WITHOUT A WARRANT

There are several circumstances under which a person can be arrested without a warrant;
By a police officer. A police officer is defined as any attested member of the police force as
per sec 3(d) of the Police Act. Under sec 24 Police Act and sec 10 C.P.C.A, a police officer can
arrest a person without a warrant under the following circumstances;
a) Where he suspects upon reasonable grounds that such a person has committed a
cognizable offence (chapter 28 of the Penal Code Act)
b) Where a person commits a breach of peace in his presence
c) Where a person obstructs a police officer in the execution of his duties or a person who
has escaped from lawful custody or has attempted to escape from lawful custody
d) Where a police officer suspects upon reasonable grounds that such a person is a
deserter from the armed forces of Uganda (sec 10 C.P.C.A) and any person a police officer

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finds on a high way or any other place during the night and whom the police officer
suspects of having committed a crime.
e) Any person whom the police officer suspects upon reasonable grounds of having been
concerned in any criminal act committed out side Uganda.
f)

Any person having in his possession with out lawful excuse, implements for house

breaking.
g) Any person to whom the police officer on reasonable grounds believes that a warrant of
arrest has been issued.
h) Where a person is in possession of property suspected of having been stolen or who may
reasonably be suspected of having committed an offence with reference to such a thing.
i)

Other circumstances under which a police officer can arrest with out a warrant are

provided for under sec 11 C.P.C.A eg vagabond or habitual robbers (criminals).

A police officer can also arrest a person who commits an offence in his presence and
refuses to give his name and residence or he gives a wrong name and address. See S. 13
C.P.C.A. Read the case of Joseph Byaruhanga, where this person shot at suspects and the
issue was whether a person arrested should always be in hand cuffs? He was not charged
hence sec 13 did not apply. Appeal; was dismissed too.
A magistrate, under sec 19 of the C.P.C.A. It provides that a magistrate may arrest a person
who commits an offence in his presence with in the local limits of his jurisdiction.
Arrest by local administration police
These powers were given under the Police Act. However whenever these officers of the local
administration are required to operate under the immediate direction and control of the
officer in charge of Uganda police force.
Arrest by a chief
Chiefs were given powers of arrest by the Local Administration Act 1967. Under sec 40,
every chief is required to obey all orders issued and warrants issued to him by any court or
any competent authority responsible for law and order. However, this Act was repealed by
the Local Government Act 1997. A chief is required to collect and communicate intelligence
affecting public peace, prevent the commission of an offence and public nuisance and to
detect and bring offenders to justice and apprehend those for whose apprehension he has
sufficient grounds to do.

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Arrest by private persons

Under sec 15(1) C.P.C.A, a private person may arrest any person who, in his view commit a
cognisable offence or whom he suspects of having committed a felony. Secondly the owner of
property or his servants or persons ordered by him may arrest a person being arrested with
out a warrant in any of the above situations has a right to know why he is being arrested.
Under sec 16 C.P.C.A. any person arrested must be handed over to the police. It is not
necessary to tell the reason of arrest where the reason of arrest is obvious.
SEARCHES
A search is an inspection made on a person, in a building or a place for ascertaining
whether there is any evidence for criminal prosecution.
Why do we search?
There are 2 main reasons why there is a search;
a) To collect evidence and exhibit to be used in criminal proceedings
b) To make an arrest on suspicion and establishing the evidence after the search.
Section 69 M.C.A provides that when a police officer has reason to believe that material
evidence has to be obtained in connection with an offence for which an arrest has been
made or authorised, any police officer may search any place or place of business for the
person arrested or for the person for whom a warrant of arrest has been issued. He can take
anything which might reasonably be used as evidence in any proceedings.
PROCEDURES OF CONDUCTING A SEARCH
1. Search of arrested person
The procedure here is provided under sec 6(2) CPCA which provides that a police officer may
search any person who has been arrested and may take possession of anything found on
such a person that may be used as evidence against the arrested person.
2. Search of vehicles and parcels
The procedure is provided under sec 7 of the C.P.C.A. Under this section any police officer
may stop and search any person or vehicle on reasonable suspicion that anything stolen or
unlawfully obtained may be found.

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BAIL
This is an agreement between the accused and the court that the accused will pay a
certain amount of money fixed by court should he fail to attend court for trial on a
certain date. This agreement includes sureties.
Bail is a constitutional right under
Art 23(6) of the Constitution which provides that a person is entitled to apply for bail if
the offence is triable by the High Court as well as a subordinate court.
A person shall be released on bail on such conditions as court considers reasonable. If a
person has been remanded in custody in respect of an offence before trial for 120 days
counsel should move court to release that person (automatic release). In case of an
offence triable by the High Court, the days are 360 days. However, in both cases the
person is released on such conditions as court considers reasonable eg court can not
release a person who may or is likely to escape or interfere with prosecution witnesses.
REASONS FOR GRANTING BAIL
The reason is to ensure that a person appears to answer the charge against him without
being detained in prison on remand, It is vital to note that bail is a temporary release
and not an acquittal. Two points must be noted before granting bail.
1. The presumption of innocence, the accused is presumed innocent until proved guilty.
He should therefore not be imprisoned.
2. It is unfair in certain circumstances to keep the accused person in custody without
trial.
POWERS OF GRANTING BAIL
1. High Court Sec 14 T.I.A. the High Court can grant bail.
2. Magistrates Court except where the accused is charged with an offence that is triable
only by the High Court.
APPLICATION FOR BAIL
In Magistrate courts, bail application is normally made orally or in writing and if it is
done in writing, it is supported by an affidavit.

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In the High court, it is usually in writing by notice of motion supported by an affidavit.

Notice of an application to the High Court must be given to the D.P.P and to the Police in
the Magistrates court. (SEE r.3 of the Judicature (Criminal Procedure Application rules
SI 13-8)
CONDITIONS CONSIDERED FOR GRANTING BAIL
These are provided for under sec 77 of the M.C. A.
1. The nature of offence (capital offences or misdemeanors)
2. The gravity of the offence and severity of the sentence
3. The antecedents of the applicant as far as they are known, behavior, previous
convictions eg looking at the criminal case registry for these convictions
4. Whether the applicant has a fixed place of abode with in the area of courts
jurisdiction.
5. Whether the applicant is likely to interfere with witnesses eg bribing them,
intimidating them. You can prove this by showing that the applicant is a man of great
influence.
REFUSAL OF BAIL APPLICATION BY SURBODINATE COURTS.
An application can be made to the high court or Chief Magistrate where bail has been
refused by a subordinate court. See sec 75(3, 4) M.C.A. However it is important to note
that this is not an appeal. Court has powers also to reduce the amount of bail bond (sec
75(3) M.C.A.) In case of a Chief Magistrate refusing bail, an application can be made to
the High Court. It is vital to note that the accused may reapply before the same court
when conditions for bail application change eg sickness, fixed place of abode etc. see
Livingstone Mukasa & others v Ug (1976) HCB 117, Banju v R (1973) EA, Jeffer v R
(1973) EA 39, Onyango v Ug (1967) EA, Kityo v R (1967) EA.
WHERE BAIL APPLICATION IS NOT OPPOSED
What if the bail application is not opposed by the prosecution? The court may try to
investigate.
SURETY
Section 80 M.C.A and sec 18 T.I.A, a surety is a person who binds himself to satisfy the
obligation of another if the latter fails to do so.

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A surety is a legal responsibility; there fore it means one is not assisting a friend or a
relative to be released. A surety has to ensure that the accused does not abscond or
jump bail. In case the accused fails to attend, the surety must answer or explain as per
the case of Uganda v Haji Abasi Mugerwa (1975) HCB 216.
A surety can arrest the accused if he has reasons to believe that the accused is about to
disappear or abscond. In case he absconds, the surety will be called in court to show
why the recognizance should not be forfeited.
The following are the stages under which bail can be granted:
1. At any stage in the proceedings by the court having criminal jurisdiction. Sec 14 T.I.A
& sec 75 M.C.A
2. A chief magistrate may grant bail under the following circumstances:
a) Where an accused has been committed for sentencing by grade 1, 2, 3 to his court
and the chief considers conviction illegal, he can grant bail.
b) Where the chief magistrate forwards a record to the High Court in the exercise of his
supervisory power or when he feels it is in the interest of justice to do so. See sec 221
M.C.A
CIRCUMSTANCES UNDER WHICH BAIL IS NOT GRANTED.
1. Where court considers that it has no power to sentence the accused or commits the
offender for sentence to a higher court. (S. 161 M.C.A)
2. Where the accused committed an offence triable by High Court and is remanded to
appear before a magistrate with jurisdiction to conduct committal proceedings.
3. When the magistrate has committed the accused to the High Court for trial
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
MISC. APPLICATION NO. 21/95
BIJJA ROBBERT.APPLICANT
VERSUS
UGANDA.RESPONDENT
BEFORE: THE HONOURABLE JUSTICE C.M.KATO
RULING

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This ruling refers to an application for bail. The applicant Robert Bijja is charged with the
offence of Defilement c/s 123(1) of PCA. He is seeking for a release on bail pending his trial.
The application is by notice of motion dated 17-11-95 and it is supported by the applicants
own affidavit also dated 17-11-95.
By provisions of section 14A of TID as amended by statutes 5 and 6 of 1990 a person
charged with defilement can only be released on bail if he proves to the satisfaction of the
court that special circumstances do exist to warrant his being released on bail. The
circumstances which are regarded a special include grave sickness, infancy or old age, the
fact that the applicant has been on remand for over 12 months as per article 23(6)(c) of the
new Constitution and that the state does not oppose the applicant being released on bail.
In the present case the applicant who appeared in person has stated that he is a young boy
of 17 years and that he also suffers from chest pain. The learned counsel for the respondent
has not objected the accused being released on bail provided that stringent conditions are
imposed to compel the applicant to attend court. The mere fact that the applicant is having
chest pain is not a good ground to have him released on bail in the absence of any medical
report, but in view of the fact this is a school boy aged 17 years and in view of the fact that
the state does not oppose his being released on bail I will grant this application for being
released on bail. He is accordingly released on bail on the following conditions:
1.
2.

He is to produce 100,000/= cash as deposit.

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

3.

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

4.

The above conditions will have to he complied with and failure to do so without any
reasonable ground will automatically result in the bail being cancelled.
C.M. KATO
JUDGE
28-11-1995
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. CR. APPL. NO. 185/1989
BUMBAKALI :::::::::::::::::::::APPLICANT.
VERSUS
UGANDA ::::::::::::::::::::::RESPONDENT,
BEFORE: The Honourable Mr. Ag. Justice J.WN. Tsekooko
RULING

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The accused is charged with the offence of Murder c/s 183 of penal Code. He first appeared
in Court on the said charge on 2nd January, 1987 and has been on remand since then.
I gather from the learned State Attorney that Wandegeya Police Station has not submitted to
the D.P.P. the police file for perusal and decision as to the fate of the charges against the
accused. He therefore does not oppose release on bail.
The accused has been on remand for an aggregate period of 38 months. There is no prospect
of his being committed to the High Court for trial soon, in the circumstances the accused
qualifies for release on bail in terms of Section 14A of the T.I.D. 1971 as amended.
As the Sate Attorney does not oppose the application the accused is released on bail on the
following conditions:
(a) He shall deposit cash Sh5. 50,000/= in Court.
(b) His two sureties are to be bound in the sum of Shs.
200,000/= not cash.
(c) Accused to report to Buganda Road Chief Magistrates Court after every 30 days
from the date he fulfills these conditions until his case is otherwise dealt with.
If he does not fulfill these conditions he is to go back on remand.
J .W.N. TSEKOOKO
AG. JUDGE
19/3/1990

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT GULU
HCT 02 CO MA 0056 2008
and
HCT 02 CO MA 0058 - 2008
(Arising from Gulu Criminal Case No. 910/2008)
1. JAMES OKECH
2.CHRISTOPHER

LAGAI OYON :::::::::::::::::APPLICANTS/ACCUSED

VERSUS

UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT/PROSECUTION
BEFORE: HIS HON. JUSTICE REMMY KASULE

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RULING
This ruling is in respect of two bail applications in this court: Numbers
56/2008 and 58/2008; both arising from Gulu Chief Magistrates Court Criminal Case
Number 910/2008.
In the Criminal Case Number 910/2008, James Okech, applicant in number
56/2008 and Christopher Lagai Oyon, applicant in Number 58/2008, are both charged with
two others of causing financial loss c/s 269 (1) of the Penal Code.

In the same case

Christopher Lagai Oyon is further charged with two other charges of abuse of office c/s
87(1) and conspiracy to commit a felony c/s 390 of the Penal Code. In this ruling James
Okech shall be refereed to as the first applicant and Christopher Lagai Oyon as the
second applicant.
The charges with which the two applicants are respectively charged are alleged
to have been committed between April and March 2008 at Amuru District Local
Government, Amuru District. The first applicant is said to have committed the same by
virtue of his office of employment as Chief Finance Officer, while the second applicant is
alleged to have committed the charges, by virtue of his office of employment of senior
personnel officer attached to Amuru District Local Government.
The essence of the charges is that the applicants, and others on the charge
sheet, in the performance of their respective duties of office, while attached to Amuru
District Local Government, created ghost teachers by helping to enter their names in the
Teachers payroll and failing to delete their names from the payroll, knowing or having reason
to believe, that such act would cause financial loss, be prejudicial to the interest of Amuru
Local Government.
Each of the applicants deponed to an affidavit in support of his application.
The first applicant, who resides at Lacor Trading Centre, Layibi Division, Gulu
Municipality, is a family person with a wife and six children and three dependants. His wife
is expected to deliver soon. He presented Mr. Ochola Patrick, a business man and a brother
in law to applicant, and Mr. Lalonyo David, an accountant, professional colleague and friend
as his sureties.
First applicant was arrested on 20.08.2008, charged in Chief Magistrates
court, Gulu, pleaded guilty, and remanded at Gulu Government Central Prison.
The second applicant resides at Acholi Road, plot 22 Pece Division, Gulu
Municipality. He is married with one wife, has one child aged ten and supports four other
dependants. Mr. Ochaya Gabriel, a programme Co-ordinator with Dyero Tek Community
Organization, elder brother to second applicant, and Mr. Ongom Apollo, Accountant, Gulu
Independent Hospital, younger brother to applicant, were presented to court as sureties to
the second applicant.

19

On 27.08.2008 second applicant was charged before the Chief Magistrates

Court, Gulu, pleaded not guilty and was remanded to Gulu Government Central prison.
The second applicant claims and attached medical notes and communication
from Dr. Engenye Charles, Ag. Medical Superintendent, Gulu Regional Hospital, that he is a
hypertensive patient.
According to paragraph 1 and 6 of second applicants affidavit of 28 th August,
2008, on 22.08.2008, second applicant was admitted to hospital and was discharged on
26.08.2008.

On 28.08.2008, while in prison, his temperature rose and was admitted to

Gulu Referral Hospital.

It was submitted for both applicants that they be released on bail as they both
had established residence within the jurisdiction of the court and had provided substantial
sureties. For the first applicant, it was submitted that the fact that his wife was about to
deliver, was a matter for the court, to exercise its discretion and release the first applicant to
provide the necessary presence and consortium to her. For the second applicant, it was
submitted that his grave illness, is an exceptional circumstance, justifying his being
released on bail.
The state opposed the applications for bail as no exceptional circumstances
had been proved, and at any rate the state was ready for trial, investigations having been
completed.
Any accused person has a constitutional right to apply to a court of law to be
released on bail. This right is given by Article 23 (b) (a) of the Constitution.
It is however not a constitutional right that every accused person must be
granted bail.

The court has a discretion to grant or to refuse to grant bail: See

Constitutional Court of Uganda Constitutional Reference No. 20 of 2005: Uganda (DPP)

vs Col. (Rtd) Dr. Kiiza Besigye. See also Constitutional Court of Uganda Constitutional
Petition No. 20 of 2006 Foundation For Human Rights Initiatives vs Attorney General.
While considering an application for bail, court has to consider the need to
balance the constitutional rights of the applicant together with the needs of society to be
protected from lawlessness; and the fact that the criminal justice system, an essential
component of the Rule of law, is effective. Court therefore, considers a number of factors,
such as weighing the gravity of the offence, the risk of the accused absconding, interference
with the course of justice, the likelihood of the applicant offending while on bail, indication
of violence or threatening behaviour by the accused, the status of the offence and the stage
in the proceedings and the extent to which evidence pointing to proof of guilty or innocence
of applicant, once that evidence is placed before court by the investigating officer. The court
may also consider the possible penalty that the applicant may suffer, in case of conviction.
The court considering bail, must be conscious, all along, that the applicant is
presumed innocent until proved guilty or until the applicant pleads guilty.

20

The legislature in its wisdom, has, because of the gravity to society of some
criminal offences, imposed restrictions as to bail in respect of those specific offences.
Section 15 of the Trial on Indictments Act, Cap. 23, provides that court may refuse to grant
bail to a person accused of a specified offence, if that person does not prove to the
satisfaction of the court that an exceptional circumstance exists justifying release on bail.
Section 15(2) (d) and (f) of the same Act specifies the offences of abuse of office
and causing financial loss as some of the offences where proof of an exceptional
circumstance is required before applicant is released on bail.
The exceptional circumstances that have to be proved are according to section
15 (3) of the Act, grave illness certified by a medical officer of the prison where applicant is
detained, as being incapable of adequate medical treatment while the accused is in custody,
or a certificate of no objection to bail from the DPP or infancy or advanced age of the
applicant.
The first applicant has not proved any exceptional circumstance in his
application.
As to the second applicant, there has been an attempt to prove grave illness.
There is however no certification by a medical officer of Gulu Central Prison, where second
applicant is on remand, to the effect of that prison being incapable of making provision for
second applicant to receive adequate medical treatment for his sickness. In Miscellaneous
Application Number 30 of 2003 at High Court, Kampala, Immaculate Lugolobi vs
Uganda: Bamwine; J. stated: In my view in a bail application of this nature, nothing should be left to guess
work. At this stage of the proceedings, what this court requires is information, not
so much that the applicant is sick, because the applicant can give that information
and has done so in her affidavit, but certification by a medical officer of the prison
where the accused is detained that the applicant is so gravely ill that her condition
warrants release from custody for better management of the said health condition.
Such a certificate has not been furnished
The above holding applies with equal force and effect to the second applicants application.
This court holds that the second applicant has not proved to the satisfaction of court, grave
illness, as an exceptional circumstance.
It therefore remains to court to determine whether, in the exercise of its
discretion, any of the applicants, or both of them, may be released on bail.
Judicial discretion is the power of the court to act in accordance with the
dictates of its own judgment and conscience in accordance with well laid down principles of
law. Its exercise must not be arbitrary, capricious or unrestrained. It must be the exercise
of judicial judgment based on facts and guided by law or the equitable decision of what is
just and proper under the circumstances. It must be exercised according to the rules of

21

reason and justice and must be based on judicial grounds: See Hon.Justice Benjamin J.
Odoki: The Uganda Living Law Journal vol. 1 No. 1 June 2003 p.3
This court has held in High Court at Gulu Miscellaneous Application No.
166/2008: Bongomin Richard Akal vs Uganda: that:The burden is upon the applicant to satisfy court by putting forth before court a set
of facts, beyond the ordinary consideration, upon which the court can act, in the
exercise of its discretion to admit the applicant to bail.
The above applies to this application.
The first applicant has asserted that his wife is about to deliver and therefore he
should be granted bail to provide the necessary support and consortium as the husband.
There is no affidavit from the wife of the applicant as to her state of health,
and as to why, apart from the normal consortium that a spouse gives to the other, the first
applicants presence is particularly required at this material time in particular. There is no
medical evidence at all to support the assertion of the first applicant.
Indeed court was not in any way given any particulars of the first applicants wife, such as
names, residence, work and work place, age of pregnancy, and whether or not there are any
peculiar health problems with her pregnancy. The burden lies upon the applicant. This
burden has not been discharged.
As to the second applicant, there are no special facts, other than grave illness, which he did
not prove, for court to exercise its discretion upon, so as to grant bail to him.
The offences with which the applicants are charged are very grave offences. That is why the
legislature saw it fit to isolate them by section 15 of the Trial on Indictments Act, Cap. 23,
from the ordinary offences where bail is granted on proof of the ordinary normal
requirements for bail.
Both applicants have failed to prove exceptional circumstances or to put forward a set of
facts upon which this court can exercise its discretion and grant bail to each one of them.
The applications for bail therefore fail. Both stand dismissed.
Since the state is ready with its witnesses, the trial court is urged to commence the hearing
of the case at earliest.

....................................
Remmy Kasule
Judge
12th September, 2008.

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CHARGES AND INDICTMENTS (Pg 65 - 84 AYUME)

Note that before an accused is tried in a court, he must be informed of the charges
against him. A charge is a written statement containing the accusation against a person
alleged to have committed an offence. The charge must be drawn up by a police officer or
a magistrate and signed by a magistrate.
An indictment is a formal written accusation drawn up, signed and filed by the DPP in
the registry of the High Court, to be used in the trial by that court. Apart from the form
and court in which they are used, there is no difference between a charge and an
indictment.
THE CONTENTS OF A CHARGE / INDICTMENT
The charge must contain a statement of the offence with which the accused is charged.
It must contain particulars of the offence giving the accused person reasonable
information as to the nature of the offence he is charged with. (See sec 85 M.C.A & 22
T.I.A.)
RULES OF DRAFTING CHARGES
1. There must be a title of criminal proceedings.
2. The form of the charge or an indictment is as follows:
- There must be a count which must commence with the statement of offence charged and
it is called statement of the offence, which must state the offence briefly, in an ordinary
language, and avoiding as far as possible the use of technical terms and without stating all
the essential elements of the offence. A reference must be made to the Statute that creates
the offence.

23

- Particulars of the offence. This should set out in ordinary language the particulars of the
offence. The use of technical terms is avoided. When a charge contains more than one
count, the counts should be numbered consecutively.
- The charge should be signed by the officer preferring it before forwarding it to court for
authentication.
- After it has been presented to court, the magistrate should sign the charge before the
accused is called upon to plead to it. In other words if it is not signed by the magistrate it
becomes defective.
JOINDER OF CHARGES
A charge may contain one or several counts. There are two types of joinder of charges;
a) Joinder of offences / counts
b) Joinder of persons or defendants.

JOINDER OF OFFENCES (Pp 70 75 AYUME)

This is covered under sec 23 TIA and 86 MCA. Under these sections, offences may be
charged in the same charge if they are found on the same facts or form or are part of
offences of the same or similar character. As a matter of practice, no count can be joined to
the offence of murder. Several factors must be considered when joining these offences ie;
a) proximity between the commission of the two offences
b) The scene of the crime where the offence took place. See Rv Dalei Singh (1943)
EACA 121, Jozef s/o Odoro v R (1954) 21 EACA 311.
See Lundow v m.p.c (1970) 54 Cr. App 233. In this case, the accused was charged with
attempted theft in a public place and robbery at a different public house in one charge. The
second offence occurred 16 days after the first. The House of Lords held that the 2 offences
can constitute a series for purposes of rule 9 of the indictment rules. Court further held
that in deciding whether the 2 offences are similar in character, both the law and character
should be taken into account. For the offences to be similar there must be a nexus. Thus
the offences in this case were similar in law and fact, they had the same neighbourhood and
the time interval was only 16 days.

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JOINDER OF DEFENDANTS
Persons accused of the same offence committed in the course of the same transaction may
be joined together in one charge and tried together. It does not matter whether one was a
principle offender and another one is the accessory. (see Section 87 MCA and 24 T.I.A.) The
most vital aspect in joining defendants is whether the offence was committed in the same
transaction. Read the case of Nathan v R (1965) EA 777 in order to understand what
amounts to same transaction.
ALTERNATIVE CHARGES OR COUNTS
This is an additional count laid against the accused in the same charge where the
prosecution is not sure which offence in law the evidence will prove. Usually the offence
must be one of a serious nature and a less serious offence that are related.

DEFECTIVE CHARGES OR INDICTMENTS

A charge or indictment may be defective. One major defect of charges is duplicity of charges.
In other words, each count must, on the face of it allege only one offence. If 2 or more
offences are put in one count, that count is bad for duplicity. The defense counsel can bring
a motion to quash that count. Duplicity may arise due to failure to follow the rules for
framing the charges as provided under sec 86(b) MCA or 23 (b) TIA.
OVER LOADING A CHARGE / INDICTMENT
This may happen in 2 situations;
1. Where different defendants or offences are included in one charge so that there is un
necessarily long and complex issues at the trial.
2. Where the defendant may be made guilty of a number of offences as a matter of strict law
e.g. conspiracy and a substantive offence in the same charge or attempted theft and theft.
The effect of defective charges or indictment.

25

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

REMEDIES OF DEFECTIVE CHARGES

1. Amendment of charges (sec 132 MCA) A magistrate is empowered to amend the charge at
any stage of trial if it appears that it is defective. He can amend the charge under the
following circumstances;
a) The evidence discloses an offence other than one with which the accused is
charged.
b) The charge is defective in a material particular.
c) The accused desires to plead guilty to an offence other than the offence he is
charged with.
After amending the charge, the magistrate must do the following as per sec 132 MCA;
- Call upon the accused to plead to the altered charge
- Give an opportunity to an accused person to further cross-examine any prosecution
witness who will be in court
- To give an opportunity to the accused to give further evidence if he so wishes.
Under sec 50 TIA, the High Court can amend a defective indictment as the circumstances
may require. There must be a defect in an indictment or charge before it is amended. The
following are the defects:
a) Non-disclosure of the offence
b) An omission on matters of detail such as incorrectly describing the subject matter of
the

offence against the accused.

c) Citing a wrong section of the statute which creates the offence.

See Uganda v Katabazi (1978) HCB 67. The accused was charged with burglary contrary to
section 295 (2) in count 1 and theft contrary to sec of the 261 Penal Code in count 2. He

26

admitted the charge on both counts and was convicted by a Grade 2 magistrate who
sentenced him to 15 months imprisonment on the first count and nine months on the 2 nd
count and both to run concurrently. The charge was held to be defective because the 2
offences though separate, should have been charged in one count, in keeping the common
practice of the courts (see decision of Mayindo J)

TRIAL PROCEDURE
PLEAS
This is an answer to a charge. The various types of pleas include;
1. Plea of guilty
2. Plea of not guilty
3. Plea of utrafois acquit or convict
4. Plea of pardon
5. Plea of bargain
6. Plea of jurisdiction (court has no powers to try one)
7. Ambiguous plea (where the accused remains silent)
PLEA OF GUILTY
This is covered under sec 124(1) MCA. It provides that after the substance of the charge has
been explained to the accused by court, he shall be asked whether he admits or denies the
charge. There will be no more issues for trial because the issue of whether he is guilty or not
will be settled by his admission. Under sec 124(1), if the accused admits the truth of the
charge, his admission should be recorded as nearly as possible in the words used by him
after having fully explained the details of the charge, the court shall then convict him unless
there is any reason to the contrary. On recording, see Adan v R (1973) EA 445.
PLEA OF NOT GUILTY
This is provided for under sec 126 MCA. If a person does not admit the truth of the charge,
then court shall record a plea of not guilty and shall proceed to hear the case. Sec 126 MCA
provides for the procedure.

27

PLEA OF ULTRA FOIS CONVICT OR ACQUIT

Sections 89,124 (5) MCA and sections 28, 31 TIA and Article 28(9) of the Constitution
provide that a person who has once been tried of an offence and convicted or acquitted of it
by a court of competent jurisdiction shall not be tried again of the same offence, on the
same facts where such conviction or acquittal has not been reversed or set a side (double
jeopardy). This is a special plea and can only succeed where the accused was first in
jeopardy. R v Danji (1948) 15 EACA, Connije v DPP
PLEA OF PARDON
Under the Constitution, the President can exercise his prerogative power and grant pardon.
This is under sec 122 (5)(b) MCA and s. 61 (1)(b) of the TIA, the accused can plead in answer
to a charge that he has obtained a pardon to his offence. Once this plea has been raised, it
up to court to investigate whether it was given or not.
PLEA OF BARGAIN
This is an arrangement by which the defendant to criminal proceedings may agree to plead
guilty to one or more charges in exchange of the prosecution extending some advantage to
him eg dropping another charge or if the defendant pleads guilty to a less serious charge.
This plea must be under scrutiny by the court and it should endeavour not to indicate what
sentence it has in mind in order not to induce the defendant to change his plea. See R v
Turner (1970) 2 QBD 321
PLEA OF JURISDICTION
Here the accused pleads that the court has no jurisdiction to try the offence. See sec 161
MCA.

AMBIGUOUS PLEAS

28

In some cases, an accused may give an ambiguous answer eg crying or I killed this man but
I did not mean to kill him. Before the magistrate enters plea of guilty or not guilty he must
explain the ambiguity to the accused.
REFUSAL TO ENTER PLEA
This is covered under sec 124(4) MCA and 68 TIA. If the accused refuses to plead, court
shall enter a plea of not guilty for him for instance where the accused keeps quite.
UNFITNESS TO PLEAD
The accused may be unfit due to insanity or any other incapacity. In such cases, sec 45 49
TI A or sec 113 118 MCA will apply.
CHANGE OF PLEA
There is nothing in law that prevents a person to change his plea at any stage in the trial.
The defendant may change plea from not guilty to guilty. This has to be before sentence is
passed. In case of change of plea, the charge is put before the accused, so that he pleads
again. See Adan v R (1973) EA 445, R v Guest (1964) 3 ALLER 385, Yusuf v Mawumba
(1966) EA 383
TRIAL PROCEDURE IN THE MAGISTRATES COURT
See sections 119 160 of the MCA
When the accused is informed or arraigned of the charge against him, he is asked to plead.
Section 124 MCA, if the accused pleads guilty, the prosecutor will outline the facts upon
which a charge is founded and then the accused will be convicted and sentenced.
If the accused pleads not guilty as per sec 126 MCA which provides the procedure that is as
follows;
-

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

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

29

Read the following cases;

Kayemba v Uganda (1983) HCB 32
Espanto Waswa v Ug (1977) EA 299
Uganda v Stephen Onyango ( 1979) HCB 89
Bahati v R (1958) EA 332
Under sec 127 MCA, Court must dismiss the case or acquit the accused if there is no prima
facie case or case to answer. When there is a prima facie case, sec 128 MCA will apply. The
accused is informed of his right for instance the right to remain silent, right to give evidence
on oath, right to make an un sworn statement.
Under sec 129 MCA, the court will proceed to hear evidence of the accused, then the
prosecutor and the advocate will make their submissions on the evidence and law
accordingly.
FINAL SUBMISSIONS
Section 131 MCA gives the prosecutor and the advocate for the accused a right to address
court after the accused has closed his case. The order of submission is as follows:
1. Where the accused adduces evidence but calls no witness, the prosecutor is entitled
to address court first and the accused replies, see sec 129 MCA.
2. Where the accused adduces evidence or makes statements under oath or calls
witnesses, the accused begins to address court and the prosecutor replies.
3. The same order applies where the accused has not adduced evidence but calls
witnesses (does not testify himself).
Section 131(4) MCA, the right of address may be exercised by any advocate representing the
accused person or the prosecutor.

THE PROCEDURE IN THE HIGH COURT

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

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Under sec. 1 of the TIA, no criminal case shall be brought under the cognizance of the High
Court for trial unless the accused has been committed to the High Court for trial in
accordance with the provisions of the MCA. The procedure of committal proceedings is as
follows:
Section 167 (a) MCA provides that when an accused person is committed to the Magistrate
with an offence triable by the High Court, the DPP shall file in the High Court an indictment
and the summary of the case. The summary of the case must contain the particulars of the
offence which shall give the accused reasonable information as to the nature of the offence
with which he is charge. For the rationale of preliminary proceedings or committal
proceedings see sec 66 of the TIA. At the conclusion of committal proceedings, the court
shall prepare a memo of the matters agreed. This memo must be read over and explained to
the accused in a language he understands. It is signed by the accused or his advocate and
then the prosecution. It is then filed.
ASSESSORS
These are people who assist court in trying technical, scientific, cultural, economic or social
issues, but their views do not bind the court. Sec 3 TIA provides that all trials in the High
Court must be held with the aid of assessors. The number shall be 2 or more as the court
thinks fit. The selection of assessors is covered under sec 3. Assessors are lay persons
selected in the locality by the Chief Magistrate. According to rule 1 of the schedule
(Assessors rules), the Chief Magistrate must select the assessors before the first day of
March in each year and prepare lists of suitable persons in his magisterial area to serve as
assessors.
QUALIFICATION OF ASSESSORS
Under rule 2 of the Assessors Rules, all citizens of Uganda between the ages of 21 60
years who are able to understand the language of court with a degree of proficiency, able to
follow the proceedings can be selected as assessors at any trial before the High Court, the
following are the exempted categories;
-

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

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

31

LIABILITY TO SERVE AS ASSESSORS

Under Rule 5 of the Assessors Rules, assessors are summoned by the Magistrate of the area
on notification by the Chief Registrar 7 days before holding of a particular session of the
High Court. The Chief Registrar notifies the Magistrate of the area with a written letter.
Under Rule 9, an assessor who fails to attend as required by the summons or having
attended, he departs with out the permission of the court, is liable by the order of the court
to a fine not exceeding 400 shillings.
Under sec 67 TIA, at the commencement of the trial and after the preliminary hearing has
been concluded, each assessor shall take an oath to impartially advise the court to the best
of his knowledge skill and ability on the pending issues. The effect of not telling the truth
under oath is perjury.
Challenging the choice of assessors;
Under sec 68 TIA, the accused or his counsel or the prosecutor may, before the assessors is
sworn in, challenge the assessor on the following grounds;
1. presumed or actual partiality
2. personal causes such as infancy, old age, deafness, blindness or infamity
3. His character such as previous convictions which in the opinion of the court renders him
unfit to serve as an assessor.
4. The persons ability to understand the language of the court. What is the language of the
court? When a challenge or objection is disputed then the issue must be tried by the
judge and the person challenged must be examined on oath if necessary. Read the case
of Ndingangu v R (1959) EA 875
THE ROLE OF ASSESSORS
Under sec 82 of TIA, when both sides have closed their case, the judge shall sum up the law
and the evidence to the assessors and then shall require each assessor to give his opinion
depending on the language of the court. The judge should direct the assessors on the
following;
1. Weight to be given to certain pieces of evidence of the prosecution witnesses and their
effect on credibility.
2. The need of corroboration evidence especially after the evidence of a child of tender
age.

32

3. When a court may base a conviction on identification of a single witness.

4. Alternative defences that are open to the accused
5. Any other offence that the accused may be convicted of if the main charge is not
proved
6. On which party the burden of proof lies and the standard of proof required in that
case.
7. That they can consult each other before reaching an opinion. The judge is not bound
by the opinion of the assessors.
In summary, the role of assessors is to advise a judge where they have special knowledge
and to give their views in abstract of what they think about a particular custom. They have a
duty of weighing the evidence as a whole and decide whether it is the accused that
committed the offence or not in light of their special knowledge as to the habit, custom,
experience etc.
QN. Assuming that there are two assessors and one dies, what happens?
The opinion of each assessor should be recorded separately, but where a single opinion for
all or both of them, others should be asked to confirm it.

33