Celebrating the Love of Friends in a Loving World

Celebrating the Love of Friends in a Loving World
Red Roses for You, My Sweet Friends ... Total Love.

My Sweet Friends

My sweet friends,

We grow closer to each other;

When we interact together and share ideas;

The common faith that we share,

Binds our hearts in one accord.

For sweet friendships last a life time,

When built on mutual respect, humility and understanding;

Throughout each different season,

We find we are one in life.

Sweet friends are there through times of grief;

And times when hope is gone;

Always there with encouragement;

So we can carry on.

I thank the Lord for you,

My true and faithful friends;

To fondly speak with you, whether we agree or not,

On this, our beloved blog;

For sweet friends will stay, no matter what;

Giving support.

Together, our hearts and minds truly unite;

With the amazing love of sweet friends.

In the spirit of true friendship,

Best wishes, my sweet friends;

May the Lord bless you abundantly.

I remain, yours truly,

B.B. Bakampa.

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Tuesday, May 13, 2014

The Right to a Fair Trial in Uganda

By Rukundo Solomon


[Author's Note: This piece of writing on the right to a fair trial in Uganda was compiled on behalf of Prison Fellowship International (Uganda Chapter). I hope someone out there might benefit from it.]

The Right to a Fair Trial

This right is established under Article 28(1) of the Constitution of Uganda, 1995. It states that, 'In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.'

Right to Access Justice
Ndyanabo vs AG [2001] 2 EA 485 (Court of Appeal of Tanzania at Dar-es-Salaam)

It was held that a person’s right of access to justice was one of the most important in a democratic society and, in Tanzania, that right could only be limited by legislation that was not only clear but which was also not violative of the Constitution. The fundamental right of access to justice was what linked together the three pillars of the Constitution, that is, the rule of law, fundamental rights and an independent, impartial and accessible judiciary. The High Court had erred in holding that the mere filing of pleadings and payment of court fees constituted access to justice. The right of access included the right to present one’s case or defence before the courts and it was incorrect to say that once a petitioner had filed his petition, he had enjoyed the whole of his right of access to justice. Though fundamental rights could be limited, the limitations could not be arbitrary, unreasonable or disproportionate to any claim of state interest. The limitation imposed by section 111(2) was arbitrary and inflicted an unjustified disability on indigent petitioners. It also classified petitioners into those who would be able to have their petitions heard and those to whom, as a result of poverty, the doors of justice would be shut. Though it was not a principle of law that all laws be of universal application, any classification had to have a rational nexus to the object sought to be achieved by the legislation in question. Consequently, Parliament had exceeded its powers by enacting section 111(2) and the said provision was unconstitutional. This being so, the end result was that rule 11(3) was still in force and a petitioner still had the right to apply for an exemption. Section 111(2) was therefore not unconstitutional in exempting the Attorney-General from the obligation of depositing money.

Peter Ng'omango vs Gerson M.K. Mwangwa and The Attorney General 1993 TLR 77 (HC)

The plaintiff sued the Principal of Mpwapwa Teachers' College who, being a public servant, applied to have the government joined as a co-defendant but his application was rejected. Then the Attorney General applied to have the government joined as a co-defendant; this application was also rejected. But finally the government was, by third party notice, joined as 2nd defendant. A preliminary objection was then raised on behalf of the government to the effect that the suit was incompetent for want of consent of the Minister to sue the government, a requirement of s 6 of the Government Proceedings Act 1967. The plaintiff countered that s 6 of the Act was unconstitutional for infringing the right of free access to court, and was therefore null and void. 

It was held that the right of an individual to have free access to the courts is well recognized by the Constitution; the requirement of consent of the Minister before one can sue the government as imposed by s 6 of the Government Proceedings Act 1967 infringes in a big way the constitutional right of free access to the courts for remedies. The requirement of ministerial fiat to sue the government defeats the spirit of the Government Proceedings Act 1967 by bringing back outdated notions which held that rulers could do no wrong and could not be sued, and which have now been discarded by nearly all commonwealth countries. The requirement of ministerial fiat to sue the government militates against the principles of accountability, openness and transparency of the government, all of which go well with the recently re-introduced multiparty democratic system.

Iddi Ibrahim vs Amri Shabani 1989 TLR 89 (HC)

Gole Shukia inherited a farm of her deceased father. A brother of the deceased who was an administrator of the deceased estate was in occupation of the farm. A male near relative of Gole instituted a suit for recovery of possession of the farm on behalf of Gole. One of the issues considered and decided by the court was on the locus standi of a female who has attained majority.

It was held that the general rule of law is that any female who has attained, in terms of s.2 of the Age of Majority Ordinance, Cap.431, full age has the right to institute proceedings in a court of law in her own name or individual capacity unassisted.

Republic vs Subordinate Court of the first Class Magistrate at City Hall, Nairobi and another ex parte Yougindar Pall Sennik and another Retread Limited [2006] 1 EA 330 (High Court of Kenya at Nairobi)

Having poisoned her mind so early by calling the court’s own witnesses it would appear the magistrate dropped her mantle to be an independent and impartial tribunal as contemplated under section 77(1) of the Constitution and became openly partial or would fairly be seen to have unconsciously taken sides by a reasonable observer. The right to a fair trial from trial to final judgment includes the right to equality before the law; the right to presumption of innocence; the right to be tried by a competent, independent and impartial tribunal established by law; the right to a fair hearing; the right to equality of arms and adversarial proceedings. In the conduct of a case especially a criminal case such as the one under scrutiny equality means identical treatment of the prosecution and the defence throughout the trial. The derogation of the principles of equality is only allowed where differentiations are legitimate and hence lawful provided they pursue a legitimate aim and to deal with factual inequalities and are reasonable in the light of their legitimate aim and must also comply with the principles of legal proportionality and democratic practice. So important is the right to a fair trial that the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception. In our case derogation is only allowed under section 83 and must comply strictly with the principles outlined. A court of law should never ever transfer or threaten to transfer the exercise of its judicial function which is the sole duty of the court only. An invitation to other people or authorities outside the court to comment or assist in an on going court case or for that matter a contemplated criminal proceedings does compromise the impartiality and the independence of the court. Indeed any pronouncement by any such public authorities is highly irregular and prejudicial to a fair trial.
Right to be heard
Director of Public Prosecutions vs Sabinis Inyasi Tesha and Raphael J. Tesha 1993 TLR 237 (CA)

It was held that it is a cardinal principle of natural justice that a party should not be condemned unheard; the appellant was not given an opportunity to respond to the allegation that the cautioned statement made by one of the respondents was illegally obtained.
Independent and Impartial Court
Libyan Arab Uganda Bank & Anor vs Adam Vassiliads [1993] III KALR 116 (HCCA)

Excessive intervention in the proceedings by a trial judge may amount to misconduct justifying the grant of a new trial. A judge should not descend into the arena where his vision may be clouded by the dust of the conflict.  In the present case the judge interrupted counsel during cross examination and this caused the failure of court from enlisting the necessary material facts upon which to adjudicate. The judge struck too soon and denied the appellants the fair opportunity of presenting their case.

Uganda Co-Operative Transport Union Ltd vs Roko Construction Ltd [1997] VI KALR 88 (SCCA)

It was held that Art 28(1) of the Constitution of Uganda provides that a person has a right to a fair and public hearing before an impartial tribunal and the failure by the trial judge to afford an opportunity to the appellant to cross-examine and challenge the evidence of accounts presented by the respondent meant that the trial was neither fair nor public.
Twagira vs Uganda [2003] 2 EA 689 (Supreme Court of Uganda at Mengo)
It was held that the term “fair trial” in article 28 means that an accused person must be afforded opportunity to, inter alia, hear the witnesses of the other side testify openly; if he chooses, challenge those witnesses by way of cross-examination; give his own evidence in his defence; and call witnesses to support his case.
Jairos Sakuzi vs Mchemwa Mnyambuyu 1994 TLR 21 (HC)
The appellant was acquitted of the charge of cattle theft by the primary court but on appeal the  district court reversed that decision and convicted the appellant of cattle theft and sentenced him to five years imprisonment. No notice for the hearing of the appeal was served on the appellant and the appeal was determined in his absence. He appealed to the High Court. Held: It is a fundamental principle of law that no person shall be condemned unheard; a person acquitted by a trial court cannot be convicted by an appellate court without being given an opportunity to be heard. The district court, on appeal, had no jurisdiction to substitute a conviction for acquittal without first giving the appellant an opportunity to be heard.
Fabian Munraha vs Rukaya Munraha 1996 TLR 150 (HC)
On 28 December 1989, the Respondent in this appeal was granted leave by the court below to prove her petition for the dissolution of marriage ex-parte on 29 January 1990. The Respondent duly appeared on the latter date, proved the dissolution of the marriage and obtained an order from the court to that effect. The Appellant appeals against that order on the basis that no notice had been sent to him informing him of the proceedings to take place on 28 December 1989, and that accordingly he could not have known of the petition date of 29 January 1990.

The Court held that as a result of the ex parte proof adduced on 29 January 1990, the Appellant was effectively and wrongfully denied the right to be heard and accordingly clearly condemned unheard. Such violation of the Appellant's right to be heard constituted a contravention of one of the basic principles of natural justice.

Article 28(2): Exclusion of Press/ Public from hearing

This provison provides that, 'Nothing in clause (1) of this article shall prevent the court or tribunal from excluding the press or the public from all or any proceedings before it for reasons of morality, public order or national security, as may be necessary in a free and democratic society.'

Article 28(3) (a): Presumption of Innocence

This provision states that, 'Every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty.'

Chandia vs Uganda [2002] 2 EA 360 (Supreme Court of Uganda at Mengo)

It was held that because of the doctrine of presumption of innocence enshrined in Article 28(3) (a) of the Constitution where an accused person has pleaded not guilty, the trial court must be cautious before admitting in evidence a confession statement made by an accused person prior to his trial.

Mubangizi vs Uganda [2003] 1 EA 164 (Supreme Court of Uganda at Mengo)

It was held that because of the provisions of article 28(3) of the Uganda Constitution by which an accused person is presumed to be innocent until proved guilty, an advocate should not concede the guilt of the accused. It should be the accused in person.

Republic vs Subordinate Court of the first Class Magistrate at City Hall, Nairobi and another ex parte Yougindar Pall Sennik and another Retread Limited [2006] 1 EA 330 (High Court of Kenya at Nairobi)

The Public Health Officer of the Nairobi City Council served a notice on the ex parte applicants on 18 August 2004 to rectify a nuisance within 30 days or face prosecution. The ex parte applicants appealed to the Chief Health Officer of the council who granted them a 6 months’ extension. This notwithstanding, the council proceeded to prosecute them in criminal case number M 867(a) of 2004 with the failure to comply with the notice. Held: The lower court’s action and ruling interfered with the principle of the presumption of innocence which is one of the constitutional rights of an accused person upon being charged and which presumption persists after charging until the final judgment. Because the accused clearly intended to rely on the letter of extension to show that he was not guilty of any offence known to law, the lower court clearly shifted the burden of proof of the accused to him whereas that burden is always on the prosecution except where a written law provides otherwise on any particular facts.

Article 28(3) (b): Right to be informed of charge

This provision states that, 'Every person who is charged with a criminal offence shall be informed immediately, in a language that the person understands, of the nature of the offence.'

Esau Namanda vs Uganda [1993] V KALR 38 (SCCR)

Five accused were charged with intermeddling with the property of the deceased person. At the trial, only one of them was produced in Court and when charges were read to him, he pleaded guilty. This plea was taken by Court to be a plea for all the 5. The remaining 4 accused appealed the conviction and sentence. It was held that the conviction of the appellant was illegal as it was contrary to his constitutional right Art.15 (2) (b) (c) to be informed of his offence and to permit him to prepare his defence. The conviction would therefore be set aside. Secondly, the charge of perjury formed a distinct charge from the material trial and therefore the convict was entitled to be tried by an independent tribunal. This had not been the case.

Article 28(3) (c): Right to facilities to prepare defence

This provison states that, 'Every person who is charged with a criminal offence shall be given adequate time and facilities for the preparation of his or her defence.'
Kataryeba Zackary & 3 Others vs Uganda [1997] I KALR 95 (HCCA)

It was held that a collective defence was unconstitutional as per Art 28 of the Constitution.
Juma and others vs Attorney-General [2003] 2 EA 461 (High Court of Kenya at Nairobi)
The applicants were charged with various criminal offences and applied to the trial court for orders that the prosecution supply them with copies of statements made by the would-be prosecution witnesses and copies of exhibits on which the prosecution would rely at the trial – in particular, copies of exhibits taken from them by the police during criminal investigations. The trial court refused the application and the applicants made a reference to the High Court complaining that their rights under sections 70 and 77(1) and (2) of the Constitution of Kenya were in danger of being violated by the refusal. Held: The provisions of the Constitution under consideration can have life and practical meaning only if accused persons are provided with copies of statements made to the police by persons who will or may be called to testify as witnesses for the prosecution as well as the copies of exhibits which are to be offered in evidence for the prosecution.

Esau Namanda vs Uganda [1993] V KALR 38 (SCCR)

Five accused were charged with intermeddling with the property of the deceased person. At the trial, only one of them was produced in Court and when charges were read to him, he pleaded guilty. This plea was taken by Court to be a plea for all the 5. The remaining 4 accused appealed the conviction and sentence. Held: The conviction of the appellant was illegal as it was contrary to his constitutional right art.15 (2) (b) (c) to be informed of his offence and to permit him to prepare his defence. The conviction would therefore be set aside. Secondly, the charge of perjury formed a distinct charge from the material trial and therefore the convict was entitled to be tried by an independent tribunal. This had not been the case.
Juma and others vs Attorney-General [2003] 2 EA 461 (High Court of Kenya at Nairobi)
The applicants were charged with various criminal offences and applied to the trial court for orders that the prosecution supply them with copies of statements made by the would-be prosecution witnesses and copies of exhibits on which the prosecution would rely at the trial – in particular, copies of exhibits taken from them by the police during criminal investigations. The trial court refused the application and the applicants made a reference to the High Court complaining that their rights under sections 70 and 77(1) and (2) of the Constitution of Kenya were in danger of being violated by the refusal.

It was held that the provisions of the Constitution under consideration can have life and practical meaning only if accused persons are provided with copies of statements made to the police by persons who will or may be called to testify as witnesses for the prosecution as well as the copies of exhibits which are to be offered in evidence for the prosecution.

Article 28(3) (d): Right to representation

This article states that, 'Every person who is charged with a criminal offence shall be permitted to appear before the court in person or, at that person’s own expense, by a lawyer of his or her choice.'

Vincent Rwamwaro vs Uganda [1986–1989] 1 EA 492 (Supreme Court of Uganda at Mengo)

The appellant was convicted by a Magistrate of robbery contrary to sections 272 and 273(1)(a) of the Penal Code and theft contrary to section 252 of the same Code. He was sentenced on the first count to imprisonment for two years and ordered to pay an unspecified amount of compensation to the complainant. He appealed to the High Court against both convictions and the order of compensation. The High Court dismissed the appeal against the convictions. The appellant preferred this second appeal principally on the ground that the High Court Judge erred when he held that the learned trial Magistrate had properly exercised his discretion when he refused to grant an adjournment to the appellant due to the absence of the appellant’s advocate. The complaint was that, by failing to grant the appellant an adjournment, the trial Magistrate deprived the appellant of his constitutional right to defend himself by counsel of his own choice.

It was held that every accused person has a constitutional right to be defended by counsel of his choice, and if he is deprived of that right through no fault of his own or that of his counsel, and a conviction follows, the conviction will be quashed on appeal. An accused person should take all reasonable steps to ensure that his counsel appears for him and if he is unable to appear to offer a satisfactory explanation to court for his absence.  In the instant case though the appellant's counsel was absent, the appellant did not furnish any explanation as to why his counsel was not in court. Therefore the trial Magistrate exercised his discretion judicially when he refused an adjournment because there was no explanation before him as to why the appellant's counsel was not in court.

Yusufu Gitta vs R [1959] 1 EA 211 (HM High Court for Uganda at Kampala)

The appellant was convicted of receiving a watch knowing the same to have been stolen contrary to s. 298 (1) of the Penal Code. In his judgment the magistrate found that the evidence proved that the appellant had sold the watch to one Adamu and that from the appellant’s denials he could only infer that the appellant knew the watch was stolen. On December 10, 1958, the accused was brought to the court when the hearing was fixed for January 5, 1959, and the accused was then released from custody. On the day of the trial when the case was called the appellant produced a letter from an advocate requesting an adjournment on the ground that he was engaged in another court on that day. As all the prosecution witnesses were present and the prosecution was ready to proceed the magistrate refused an adjournment and the case proceeded to hearing.

On appeal it was argued, inter alia:

(1) that the magistrate erred in relying on inference to prove guilty knowledge; and

(2) that the refusal to adjourn the hearing so as to enable the appellant to be legally represented constituted a miscarriage of justice. 

Court held that since the appellant had had ample time to engage an advocate it could not be said that the appellant was by the refusal of an adjournment deprived through no fault of his own of his right to be represented by counsel and he was properly convicted.

Kataryeba Zackary & 3 Others vs Uganda [1997] I KALR 95 (HCCA)

It was held that the refusal by court to adjourn the case to enable the accused engage another counsel was a denial of the accused constitutional right to be represented.

Leonard Muyingo vs Uganda [1995] II KALR 63 (HCCA)

It was held that it is clear from the record that the counsel for the accused did not take trouble to find out the progress of the case, and yet he was aware that his client's application for bail was not on.  Counsel for the defendant had ample time to contact his client in between the adjournments.  There is nothing to show that counsel tried to visit his client while on remand, and there is no evidence that he was refused access to his client. The appellant also had enough time to contact his counsel his counsel but chose not to. Accordingly, the fault lay squarely on counsel and his client. In the circumstances, the ground of appeal that there were procedural irregularities and that the appellant was denied legal representation is dismissed.

Muyimba and Others vs Uganda [1969] 1 EA 433 (High Court of Uganda at Kampala)

One of three appellants charged jointly with an offence was represented by an advocate. He had been in custody since May 1968 and the police were aware that an advocate had been instructed in June 1968. On September 5, 1968, the hearing of the case was fixed for September 10, 1968, at Masaka which is 80 miles from Kampala where the advocate practised. The advocate was informed that the case was fixed for hearing by telephone only on the morning of the hearing. He was engaged in the High Court in Kampala. The magistrate was not told that the advocate had been informed only that morning that the case was fixed for hearing. The magistrate accordingly allowed the trial to proceed. The appellant appealed on the ground that he had been denied the right to legal representation given to him by the Constitution of Uganda. 

It was held that the appellant had been deprived of right to be legally represented. This was a fundamental defect which had the effect of nullifying the trial. A retrial would be ordered as the trial of the appellant had been defective.

Ogola vs Republic [1973] 1 EA 277 (High Court of Kenya at Nairobi)

On the hearing date the advocate for the accused applied for an adjournment as the senior counsel he had briefed was not able to be present. The magistrate took into account the convenience of senior state counsel and the witnesses for the prosecution in refusing an adjournment.

It was held that there was no indication that desire for a senior counsel was a gambit to delay the trial. There was a failure to consider the right of the appellant to counsel of his choice. Appeal allowed.

Pascal Kitigwa vs Republic 1994 TLR 65 (CA)

The appellant, together with two others, were jointly charged and convicted of robbery with violence by the Ilala District Court, and sentenced to thirty years imprisonment and corporal punishment. His appeal to the High Court was unsuccessful. He appealed further to the Court of Appeal complaining that it was unfair for the Trial Magistrate to proceed with the hearing of the case after the defence advocate had left, without giving the applicant an opportunity to get another advocate. He also argued that it was wrong for the trial court to convict on the evidence of a co-accused.

It was held that the trial court was in error in not giving a last chance to the appellant to get another advocate when attention was drawn to the fact that his advocate was absent; but in the circumstances of this case the error did not prejudice the appellant or occasion a failure of justice.

Dawido Qumunga vs Republic 1993 TLR 120 (CA)

The appellant was charged and convicted of murder by the High Court sitting at Arusha. He was sentenced to death. He appealed against both conviction and sentence arguing, inter alia, that he had to prosecute his defence without legal assistance. It was held that the absence of counsel in a trial involving a charge carrying the death penalty deprived the Trial Court of assistance so vital that it cannot be said that the appellant had a fair and just trial.

Hassan Mohamed Mkonde & Another vs Republic 1991 TLR 148 (HC)

In a trial before the subordinate court the appellant was represented by an advocate who persistently defaulted appearing in court.  The trial magistrate ordered the trial to proceed without the advocate's representation.  On an application to quash the proceedings before the trial court the judge found that the trial court had acted properly in proceeding with the trial in the absence of the Advocate.

It was held that under the provisions of section 310 of the Criminal Procedure Act, No. 9 of 1985, an accused has a right to engage an Advocate.  But such a right has to be reasonably exercised and must be considered along with other equally important rights. For example, a court of law cannot consider only the right of an accused before it in complete oblivion of the rights of witnesses who appear before it after they have traveled from near and far.

Article 28 (3) (e): Right to Representation at expense of the State

This article states that, 'Every person who is charged with a criminal offence shall in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State.'

Thomas Mjengi vs Republic 1992 TLR 157 (HC)

In an appeal against conviction and sentence, the judge found that the subordinate trial court erred in not informing the appellants of their right to free legal aid paid for by the state and that the subordinate trial court had no power to sentence the appellants to a term of imprisonment of a period exceeding eight years. The judge also found that the mandatory minimum sentence of 30 years imprisonment and corporal punishment were unconstitutional and were not saved by the derogation clause in the constitution. The judge also found that the offence of armed robbery exists in the Penal Code.

Court therefore, held that the trial was a nullity because the appellants who are indigent were denied of their statutory and constitutional right to legal representation paid for by the state. The trial was also a nullity because the appellants were not informed of their right to have legal representation.

Haruna Said vs Republic 1991 TLR 124 (HC)

In an appeal the judge of the High Court found that the trial magistrate had wrongly substituted a charge after acquitting the appellant of all the charges with a charge equivalent to the previous charges and convicted him.  The judge also found that no evidence on theft had been adduced and that the case involved complicated issues of law which required the trial magistrate to forward to the Chief Justice certified copies of proceedings and recommendation that the appellant needed legal aid to conduct his defence.

It was held that where in any proceedings it appears to the certifying authority that it is desirable in the interests of justice that an accused should have legal aid in the preparation and conduct of his defence or appeal and that his means are insufficient to enable him to obtain such aid, the certifying authority may certify that the accused ought to have free legal aid.  For proceedings in the High Court the certifying authority is the Chief Justice or the Judge of the High Court conducting such proceedings and in the case of a proceeding before a District or a Court of a Resident Magistrate, the certifying authority is the Chief Justice.

That in two instances, it will normally be presumed, that the interests of justice require that the accused should be legally represented at his trial. These are namely,

     (a)    where an accused is charged with a serious offence, wherefore a lengthy prison sentence is likely to follow upon a conviction; and
      
     (b)   when the trial is likely to include complicated issues of law like alibi, possession, burden of proof, consent, knowledge, confessions, hearsay evidence, special circumstances or special reasons etc.

Wherever the two instances aforesaid present themselves the trial magistrate is enjoined to conduct an inquiry to determine the means of the accused person to see if he or she can afford to hire an advocate. Legal representation is a constitutional right. The right to fair hearing under article 13(b) (a) of our Constitution carries with it the right to legal representation. Where legal aid is unreasonably refused by the certifying authority or where the trial magistrate has omitted to send the proceedings to the certifying authority for consideration of legal aid, the trial will be held to be a nullity.

Article 28(3) (f): Right to Interpreter

This provision states that, 'Every person who is charged with a criminal offence shall be afforded, without payment by that person, the assistance of an interpreter if that person cannot understand the language used at the trial.'

Andrea vs R [1970] EA 26

A Mozambican only understood Portuguese and his native language. The trial was conducted in English and he appealed to the-then East African Court of Appeal arguing that he had not understood the proceedings and therefore had not been fairly heard by the court in reaching its conviction.

The court held that this amounted to a violation of the accused’s right to an interpreter during trial.

Article 28(3) (g): Right to bring and examine witnesses

This provision states that, 'Every person who is charged with a criminal offence shall be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court.'

Uganda Co-Operative Transport Union Ltd vs Roko Construction Ltd [1997] VI KALR 88 (SCCA       )

It was held that Art 28(1) Constitution of Uganda provides that a person has a right to a fair and public hearing before an impartial tribunal and the failure by the trial judge to afford an opportunity to the appellant to cross-examine and challenge the evidence of accounts presented by the respondent meant that the trial was neither fair nor public.
Twagira vs Uganda [2003] 2 EA 689 (Supreme Court of Uganda at Mengo)
It was held that the term “fair trial” in article 28 means that an accused person must be afforded opportunity to, inter alia, hear the witnesses of the other side testify openly; if he chooses, challenge those witnesses by way of cross-examination; give his own evidence in his defence; and call witnesses to support his case.

Republic vs Subordinate Court of the first Class Magistrate at City Hall, Nairobi and another ex parte Yougindar Pall Sennik and another Retread Limited [2006] 1 EA 330 (High Court of Kenya at Nairobi)
The principle which must be borne in mind is that the accused person must at all times be accorded a genuine possibility of answering charges; challenging evidence; cross-examining witnesses and doing so in a dignified situation. Any of the above infringements does seriously jeopardize the right to a fair trial and also the right to be presumed innocent. The taking of evidence upfront by the court of the five witnesses on the court’s own motion without even giving the unrepresented accused an opportunity to cross examine them was a clear denial of the right to equality of arms. In addition it clearly prejudiced the accused’s right to produce the letter of extension as part of his defence after the prosecution’s case. The ruling on the validity of the letter of extension before the commencement of the case for the prosecution seriously eroded the impartiality of the court and placed unnecessary burden of proof on the defence, even if on the facts the court could have been right in taking the issue of the extension of the notice to abate nuisance, to have been an afterthought on the part of the accused. Although section 150 of the Criminal Procedure Code gives power to the court at any stage of the trial to call any person as a witness in the rare cases where this becomes necessary both the prosecution and the defence must be given equal opportunity to cross-examine such witnesses.

Article 28(5): No trial in Absentia

This article states that, 'Except with his or her consent, the trial of any person shall not take place in the absence of that person unless the person so conducts himself or herself as to render the continuance of the proceedings in the presence of that person impracticable and the court makes an order for the person to be removed and the trial to proceed in the absence of that person.'

Mureithi and another vs Republic [2006] 1 EA 238 (Court of Appeal of Kenya at Nakuru)

It was held that the two appellants had been present before the High Court when their appeals had been called out for hearing. They had informed the judges of the High Court that they had prepared and presented written submissions to the court and they had orally addressed the court following counsel for the respondent’s submissions. They had therefore been accorded their right to a fair hearing under section 77(2) of the Constitution.

Olonyo Lemuna and Lekitoni Lemuna vs Republic 1994 TLR 54 (CA)

The two appellants were jointly charged in the District Court of Monduli with robbery with violence contrary to sections 285 and 286 of the Penal Code. Just before the prosecution closed its case they jumped bail and the rest of the proceedings were conducted in their absence. They were convicted and sentenced in absentia in terms of the provisions of s 227 of the Criminal Procedure Act 1985, and sentenced to 8 years imprisonment and an order of compensation of Shs 60,000/= the worth of the three goats the subject of the charge. Their appeals to the High Court were dismissed, and their prison sentence was enhanced to fifteen years. On further appeal to the Court of Appeal they asserted that, the trial having proceeded in their absence, they were not given the opportunity to be heard. 

It was held that Section 226(2) of the Criminal Procedure Act 1985 makes provision for the court to set aside a conviction entered in the absence of the accused if it is satisfied that the absence was due to causes beyond the control of the accused; this accords to the accused person an opportunity to be heard. Section 227 of the Criminal Procedure Act 1985, which allows the conviction of an accused person in absentia, can only be invoked when an accused person being tried by a subordinate court fails to appear in court for hearing after the close of the prosecution case. Only prior to the close of the prosecution case are the circumstances set out in s 226 of the Criminal Procedure Act 1985 applicable; after the close of the prosecution case, s 226 is inapplicable and s 227 takes over. As in this case the appellants absconded before the prosecution closed its case, the trial court misapplied the provisions of s 227 of the Criminal Procedure Act 1985. Having misapplied s 227 of the Criminal Procedure Act 1985, justice in this case would be met if the discretionary powers under s 226(2) of the Act were invoked and have the case re-opened.

Moses Mayunga vs Republic 1993 TLR 115 (HC)

The appellant was charged with breaking into a building and stealing therefrom. After the prosecution closed its case, he jumped bail and absconded. The Trial Court convicted and sentenced him in absentia. On appeal he complained of being denied the right to defend himself and to call witnesses. Held: Having jumped bail and absconded, the appellant is estopped from complaining that conviction and sentence were passed in his absence.

Article 28(7): Principle of Legality

This article provides that 'No person shall be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place constitute a criminal offence.'

Akankwasa Damian vs Uganda Constitutional Application No 07 of 2011 & Constitutional Application No 09 of 2011

It was held that the requirement of Article 28(7) as we understand it is that for a person to be charged with a criminal offence under any legislation the facts or omissions allegedly committed must have constituted a criminal offence which is defined under the law and there has to be a sentence prescribed for it. The test to be applied is whether the acts or omissions allegedly committed by an accused person constituted a criminal offence at the time they were committed. The acts which the applicant is alleged to have committed and which it is alleged caused financial loss to National Forest Authority occurred between 13th August 2007 and 29th February 2008. During this period there was a criminal offence of causing financial loss defined under Section 269 of the Penal Code Act which has been repealed by the Anti Corruption Act. There was also a punishment prescribed for it.

Article 28(9): Double Jeopardy

This article provides that, 'A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.'

Uganda Law Society vs Attorney General [2006] 1 EA 401 (Constitutional Court of Uganda at Kampala); [2009] 5 LRC 1

The facts are that Rtd Col Kizza Besigye, a leader of an opposition party in Uganda, and 22 others were charged with treason and misprision of treason. They applied for and were granted bail by the High Court. However as the bail was being processed, the accused were taken to Makindye and jointly charged in the General Court Martial with the offence of terrorism and unlawful possession of firearms.

It was held that the existence of the proceedings against the accused persons in the two courts of concurrent jurisdiction for different offences which arose from the same set of facts would be inconsistent with articles 28(9) of the Constitution. To restrict the scope of section 28(9) to the same case of which the accused had earlier been tried and either convicted or acquitted is to give a restrictive interpretation to the provision contrary to the principle of dynamic and progressive interpretation of constitutional provisions, particularly those that relate to the fundamental rights and freedoms.

Article 28(10): Pardon

This article states that, 'No person shall be tried for a criminal offence if the person shows that he or she has been pardoned in respect of that offence.'

Professor Isaac Newton Ojok vs Uganda [1993] VI KALR 31 (SCCA)

Court held that while Art.73 of the constitution empowered the president to grant pardon or amnesty, it is clear from the evidence that the appellant was one of a select few who was to appear in court charged in the treason. Therefore, the trial judge directed herself correctly on the evidence and law when she rejected the appellant's plea in arrest of judgment that he had been pardoned while on remand.

Smith Opon Achak & Ahmed Oceny vs Uganda [1993] II KALR 60 (SCCR)

The court held that the President may grant pardon according to Article 73 (9) of the Constitution which does not state that the pardon must be in writing but the fact that the exercise of the Presidential prerogative has to be acted upon by officers of government prison authorities; it means that the pardon must be a signed instrument. It was incumbent upon the appellants to prove on the balance of probabilities whether they had been pardoned by the General Presidential pardon.  They appellants had failed to prove this.

Article 28(11): Non Compellability

This article provides that, 'Where a person is being tried for a criminal offence, neither that person nor the spouse of that person shall be compelled to give evidence against that person.'

Republic vs El Mann [1969] 1 EA 357 (High Court of Kenya at Nairobi)

The point for decision was whether the Republic might put in evidence against an accused charged with a contravention of the Exchange Control Act answers given by the accused to an investigation officer pursuant to a mandatory questionnaire under powers conferred by para. 1 (1) of the General Provisions as to Evidence and Enforcement set out in Part I of the Fifth Schedule to the Act. By a recent amendment to the Fifth Schedule, Part I, para. 1 (5) it was expressly enacted that any information obtained as a result of the questionnaire should be admissible in evidence in any prosecution for an offence under the Act. In support of refusing the admission of the information as evidence, counsel for the accused contended that the fundamental right under the Constitution of Kenya, s. 21 (7), namely, “No person who is tried for a criminal offence shall be compelled to give evidence at his trial”, rendered the amended sub-paragraph ultra vires the Constitution.

It was held that there was no ambiguity in the wording of s. 21 (7) of the Constitution, which should therefore be construed according to the ordinary and natural sense of the words used and did not protect the accused from the giving of evidence by the prosecution of information provided by the accused before the trial began. Para. 1 (5) of Part I of the Fifth Schedule to the Exchange Control Act is not ultra vires the Constitution. The information was admissible in evidence against the accused.
Spouse
Hoskyn vs Commissioner of Police for the Metropolis [1978] 2 All ER 136

The appellant was charged with wounding a woman with intent to do her grievous bodily harm, contrary to s 18 of the Offences against the Person Act 1861. Two days before the trial the appellant and the woman were married. At the trial the woman was called by the prosecution as a witness but was reluctant to give evidence against her husband. The trial judge ruled that she was not only a competent witness but also a compellable witness and he ordered her to give evidence. Part of her evidence, if believed, was highly damaging to the appellant. The appellant was convicted of the offence charged and appealed.

The Court held that the wife of a defendant charged with a crime of violence against her was not a compellable witness against him. The appeal would therefore be allowed and the conviction quashed

Article 28(12): Principle of Legality

This article provides that, 'Except for contempt of court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law.'

Mark Chavunduka & Anor vs Minister for Home Affairs Case No. 36/2000 (Zimbabwe)

It was held that the law on false news was so vague as to be construed clearly in regard to which particular words or conduct constituted the offence.

Salvatori Abuki vs Attorney General Constitutional Case No. 1/1997

The petitioner in this case argued that the Witchcraft Act, under which a person convicted of witchcraft was sought to be banished from the community in which they had lived for years, did not define in clear terms the type of conduct that was prescribed as criminal. The learned judges declared the Act unconstitutional.