O

UGANDA CHRISTIAN
UNIVERSITY

KAMPALA CAMPUS

LECTURE NOTES

CRIMINAL LIABLITY

Prepared by: HER WORSHIP NKONGE AGNES

 1.0 HOMICIDES
Homicide means the killing of another person and it is lawful if carried out in: -
1. Execution or advancement of justice. Under Chapter 4, Art 22 of the Constitution, 1995, no
person should be deprived of his or her life except in execution of a judgment, confirmed as
to conviction and sentence by the Supreme Court.
2. In reasonable defence of property and person. Section 15 of the Penal Code Act
3. As a result of an accident or misadventure except if there is negligence.
If the homicide is unlawful, the offence may be Murder undersection-188 of the Penal Code Act,
Manslaughter under section 187, Infanticide under section 123 or causing death through
reckless acts.

In each case, it is only unlawful homicide if: -

a) The deceased dies within a year and a day of the act or omission causing death. Section 198 of the
Code refers.
The original justification for this rule was to avoid the difficulty of tracing the cause of death when
there is a long interval between the infliction of the injury and the death. Leading Criminal law
authors now submit that in the present state of medical science, rule can only be justified on the
ground that one who has injured another should not remain indefinitely at risk of prosecution for
murder. But the rule remains valid both for murder and manslaughter. In R V Dyson [ 1908]2 KB
454, the accused inflicted injuries on a child in November 1906 and again in December 1907. The
child died in May, 5 1908. The accused was indicted for manslaughter. The judge directed the jury
that they could find the accused guilty if they considered death to have been caused by the injuries
inflicted in November 1906. The Appeal Court set aside the conviction, holding that “it
undoubtedly the law of the land that no person, can be convicted with manslaughter where the death
does not occur within a year and a day after the injury was inflicted, for in that event, it must be
attributed to some other cause.
Time runs not from the date of the accused’s act but from that of the infliction of the injury where
these are different e.g. the accused plants a bomb on January 2, 2000, the bomb goes off on January
2, 2002 and gravely injures the victim. The accused is guilty with homicide if the victim dies before
January 2, 2003.

b) In the case of a child, if it is born in a living state, that is when it has completely proceeded in a
living state from the body of its mother, whether it has breathed or not and whether it has an
individual circulation, or not and whether the naval string is severed or not that is to say, a child to
be a victim of murder, the child must be wholly expelled of the mother’s body and it must be alive.
See Section 197 of the Penal Code Act. The child, it is commonly said must have an existence
“Independent of the mother”. The tests of individual existence that the Courts have accepted are
that the child should have an individual circulation and should have breathed after birth.
In R.Vs. Brayn 1834 said, “It is not essential that it should have breathed at the time it was killed
as many children are born alive and yet do not breath for some time after their birth. “This appears
to be more consistent with our section 197.
only being kept alive by some apparatus? The current medical view is that the test is
one of brain death and that this can be diagnosed with certainty
C) The killing must be through an unlawful act.

In Marwa S/o Robi vs. R [ 1959] EA 660, the appellant had killed the deceased by
spearing him when the deceased had come to collect cattle which he claimed. The
appellant had raised the defence of Defence of property which for reasons set out in
the judgment failed. The unlawful act was the use of excessive force and the appellant
was convicted of murder. In Olendito vs. R EACA 61, the appellants beat their sister
to death using sticks about the thickness of one’s little finger. She was beaten in
accordance with native custom that allowed chastising women who refused to return
to their husbands. They would have been convicted with murder but for their
“mentality and stage of civilization” which the Court found was not in such a state as
to have enabled them to appreciate that what they were doing was unlawful.
In Defasi Mugayi vs. R [1965] EA607, the appellants had been incited by a chief to
beat suspected thieves to death. Upholding their conviction for murder, the Court of
Appeal stated that none of the appellants could shelter behind the invitation or order
of a chief which they must have known, was not a lawful order which they were
bound to obey and they must have known as much as the Chief said that he would be
responsible and they knew that what they were doing was wrong.
In Paul s/o Mabula Vs. R [ 1953] 20 EACA 207, the appellant killed his wife as a
result of an act intended to kill himself, she endeavoring to save him from cutting his
throat. He alleged that wound inflicted on his wife was accidental and therefore there
was no malice aforethought. It was held that where as a result of an act by an accused
person intended to kill himself and another is killed, he was properly convicted of
murder even if he did not intend to kill that other person. In R Vs. Semimi [ 1949]
ALLE.R 223, while walking with a woman, the appellant passed three men one of
whom made a remark about the woman which the appellant resented. He went back,
knocked down one of the men and in the ensuing scuffle, he killed one of them by
stabbing him through the heart with a knife which he was carrying. Three weeks to
the incident, he had showed one Ashley a knife with a blade about 8 inches and said
that he would use it if attached by more than one person. On being charged with
murder of the deceased, he pleaded that the killing was by chance – medley and
amounted to manslaughter not murder. There was evidence that he had been
restrained by standers and being a pugilist, wretched himself free and drew his knife.
It was held that the doctrine of chance – medley no longer applies in the law of
homicide. Appellant was found guilty of murder, the Court holding that there was not
much provocation to justify the use of such deadly weapon. It was a dreadful and
cowardly act of revenge on a man who had assisted the appellant’s first victim and
was prepared to repel an attack on himself.
For a person, to be convicted of any of the unlawful homicides, there must be
proof of a dead body. A fundamental rule of criminal law and procedure is that no
person shall be called to answer an accusation or be involved in the consequence of
guilt without satisfactory proof of the corpus delict, either by direct evidence or
irresistible ground of presumption. The facts which form the basis of the corpus
delict ought to be proved whether by direct testimony or by presumptive evidence of
the most cogent and irresistible ground or by clear and unsuspected confession of the
party.
In the Kimweri case – commenting on the request made by prosecution to Court to
find that the wife was dead, Court had this to say.
“While death may be proved by circumstantial evidence, without evidence as to the
production of the body of the dead person and without any evidence of the person
who saw the body of the dead person and without confession by a person accused
that he caused the death yet the Court asked to find in a murder charge that a person
is dead in a circumstance which we have stated, the evidence on which the Court is
asked to infer the death must be such as to compel the inference of death and must be
such as to be inconsistent with any reasonable theory of the alleged deceased being
alive with the result that taken as a whole the evidence leaves no doubt whatsoever
that the person in question is dead. We would give as an example of what we mean
the case of a person, on a ship in the middle of the ocean. Evidence is given that a
scream was heard and a splash was heard, but there is no evidence that any
particular person was seen to go overboard. The ship is searched and subsequently
a person to whom evidence is given that that person was a passenger on that ship is
found missing. In those circumstances although there was no evidence of a body,
although no one came forward and said that the body of the alleged deceased was
seen and although there was no confession by anyone, nevertheless those
circumstances are such as to compel the inference of death.”
Some confession in cases of murder, are not enough to convict a person
In R vs. Kersey, 21 Cox 690, the charge was murder of an infant and except for
medical evidence that the accused had recently delivered; there was no other
evidence but an extra judicial confession. The confession alone was not considered
sufficient evidence that the child had a separate existence from its mother. On these
facts, the accused was convicted with the offence of concealment of birth.
Compare case with that of:
R v Pettagazi 4 WR 19. The accused was convicted of murder. There had been a
confession to a police magistrate by Petta and 2 others. At the session, Petta made a
statement amounting to homicide altogether. The confession had been made in the

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first place to a police officer in consequence of which he had found the grave and a
sign of recent exhumation, but no dead body was found in the grave. In the grave
however, there were two pieces of cloth identified as having been worn by the
deceased on his disappearance. The accused was convicted of murder on the basis of
evidence other than his own confession.
In R v Oufrejezyk [ 1955] 1 ALL ER 247, the appellant and one S owned a farm in
partnership. Their farming venture was a failure and in need of money. The deceased
wanted to break off his partnership with the appellant. The last occasion when S was
seen alive by anyone other than the appellant was on December 14, 1953 when S
took a horse to the local blacksmith to be shod. Thereafter S disappeared completely
and his body was never found. When the appellant was called to give an account of
the disappearance, he told a story of the departure of S which was improbable and
was inconsistent with the prior account given by the appellant to the officer who had
gone to the farm on December 18, 1953. The appellant wrote contemporary letters
explicable only on the footing that he never expected S to return and put forward a
proposition to one “P” which if correct out would have involved S being
impersonated. Further, the appellant endeavored to persuade the blacksmith to say
that S had taken the horse to be shod on December 17, 1953. Minute amounts of the
blood of S were found in the walls and ceiling of the kitchen in the house occupied
by the appellant. The appellant was charged with the murder of S. The issue was
whether or not there was proof of what the law calls “corpus delict” (first a crime has
been committed and the man is dead and that his death has been caused by a crime.).
It was held that at a trial of a person charged with murder the fact of death leading to
one conclusion is provable by circumstantial evidence not withstanding that neither
the body nor any thing of body has been found and that the accused has made no
confession of any participation in the crime. Before he can be convicted, the fact of
death should be proved by such circumstances as render the commission of the
offence certain and leave no ground for reasonable doubt. The circumstantial
evidence should be so cogent and compelling as to convince a jury that upon no
rational hypothesis other than murder can the facts be accounted for. S had died not
of natural death and a corpus delict had been established. The appellant murdered S.
The short principle established by this case is “On a charge of murder, the corpus
delict may be proved by such circumstantial evidence as leaves open no other
rational hypothesis than murder.” In Kimweri vs. R 1E. A 452, the appellant was
charged with and convicted of murdering his wife from whom he had been separated
and to whom his petition for
divorce had failed. Appellant was ordered to pay maintenance to his wife and in the
meantime, he had a liaison with another woman. The appellant’s wife had
disappeared from her room on a day on which the prosecution alleged that the
appellant had visited her in Moshi (TZ) and a few days earlier, the wife’s father
received a letter purporting to come from one Kamau and stating that the appellant’s
wife had gone to Nairobi with Kamau, met an accident and died. No such accident on
the contrary had happened. It was held that although death may be proved by
circumstantial evidence, that evidence must be such as to compel the inference of
death and must be such as to be inconsistent with any theory of the alleged deceased
being alive, with the result that taken as a whole, the evidence leaves no doubt
whatsoever that the person in question is dead. The circumstances in the present case
raised considerable suspicion that the wife was dead but did not compel resistibly the
inference of death.
In the Kimweri case, there were technical problems in the way the evidence of the
relevant circumstances was proved. E.g. the contents of the Kamau letter were found
inadmissible and the source of the letter was doubted. Court said at Pg. 454.

“Earlier we have referred to certain circumstances from which the death is to be

presumed, we have said that even if those circumstances were proved to be the
received a letter and circumstances in existence still we would not consider that they
pointed compellingly and irresistibly to the wife being dead. We would mention that
we are satisfied that some if not all of those circumstances were proved by evidence
which was inadmissible. As far as the evidence of the letter referring to the accident
is concerned, what happened was that a Tanzanian witness gave evidence of the
result of inquiries given in Kenya. From these inquiries, he was informed that no
such accident had happened and no such person is dead. That evidence was
inadmissible. The result is that the lack of truth of the contents of the letter of
November 18 upon which the prosecution so relied in order to prove the guilt of the
appellant had not been proved. We must also mention that the evidence of making
the letter of November 18 which the appellant had proved, to be inadmissible
evidence. The evidence was that the typewriter expert had compared the letter in
question with a sample handed to him which purported to come from the typewriter
to which the appellant has had access. The prosecution did not call the person who
typed that sample. Thus there is no admissible evidence that the letter was typed on a
typewriter to which the appellant has had access. Finally, the letter itself is to say the
least doubted admissible. This is a letter which purports to be addressed to the wife’s
father. It should have been produced in evidence by the father or at least he should
have been called to say that he that he handed it to somebody else who subsequently
produced it”.
In RV Abdullah 16 KLR 117, the accused was charged with the murder of the
husband of the second accused. It was proved that L had been missing from the
home. The first accused had resided with L and his wife since 1933. Two brothers of

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deceased had made certain inquiries and gave evidence of an inconclusive character
of statements made between the accused to them. L’s certificate was found in his
hands. No body or part thereof could be discovered and there was no confession. It
was held that where there is no evidence of corpus delict and the confession of the
accused, such confession in the absence of evidence of confirmatory circumstances is
not sufficient to satisfy a conviction of murder or manslaughter.
2.0 MENS REA OF MURDER
This is traditionally called malice afore thought. This is a technical term with a
technical meaning different from the ordinary or popular meaning of the two words.
The phrase, it has been said “is a mere arbitrary symbol for the malice may have in it
nothing really malicious and need never be really afore thought. Thus a parent who
kills a suffering child out of motives of compassion is malicious for this purpose and
there is sufficient aforethought if an intention to kill is formed only a second before
the fatal blow is struck. Neither ill will nor premeditation is necessary.
The meaning of the term is of utmost importance for it is the presence or absence of
malice afore thought with determines whether unlawful killings is murder or
manslaughter. In R vs. Cunningham [ 1957] 2 Q B 396 It was stated that malice is
either an actual intention to do the particular kind of harm or recklessness as to
whether such harm will occur or not. Under Section 191of the PCA; malice now
consists of an intention to kill any person whether such person is the person actually
killed or not i.e. express malice. It also Comprises of Knowledge that the act or
omission, causing death will probably cause the death of some person whether such
person is the person actually killed or not although such knowledge is accompanied
by indifference whether death is caused or not or by a wish that it may not be. This is
what is referred to as implied malice.
The Supreme Court has had opportunity recently to determine the scope of
section 191of the Penal Code Act,
In the celebrated case of Nanyonjo Harriet and Anor v Uganda. Crim. Appeal No
24 of 2002, decided in 2007. The Court speaking through, Mulenga JSC criticized
the Court of Appeal for basing a conviction for murder on unproved evidence
suggesting an intention to cause grievous bodily harm. In a characteristically robust
judgment, Mulenga JSC, held that the judicial precedents of DPP vs. Smith [1961]
AC 290 and R vs. Tubere [ 1945] EACA 63, which held that malice aforethought is
defined as an intention to commit an unlawful act to any person , foreseeing that
death or grievous bodily harm is the natural and probable result were irrelevant to the
instant case because, unlike the UK and Kenya from which the precedents originate,
Uganda amended its code in 1970 and removed from the relevant section 186, (now
191) any reference to an “intention to cause grievous harm” and “knowledge that
grievous harm will probably be caused”.
Courts have also been very clear, that in cases of homicide, the intention and
knowledge of the accused person at the time of committing the offence is rarely
proved by direct evidence. The Court finds it necessary to deduce the intention or
knowledge from the circumstances surrounding the killing, including the mode of

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killing, the weapon used and the part of the body assailed. See Nanyonjo Harriet v
Uganda and Uganda vs. Dr. Aggrey Kiyingi and two others.

2.1 EXPRESS MALICE

This describes an intention to kill. Provided such an intention is proved it matters not
whether the person killed is the one intended or some other person. Thus if robbers
lie in wait for A with the intention of killing him, it is still murder in fact if they kill
not A but B. Similarly, where a husband gives a poisoned apple to wife and the wife
hands the apple to the child, the further is guilty of murder. Where a person intending
to kill himself kills another it is still murder.
See Paul s/Mabula Vs R, where the Court of appeal gave two reasons for this view.
1. Suicide is a felony even though it cannot be prosecuted so that the killing is a
killing in the course of committing a felony entailing violence.
2. It is treated as transferred malice resulting into transferred murder.
If there is a fight with many participants and one man dies, each of the participants
will be guilty of murder if it can be proved that each had the common intention to
kill. Common intention may be formed at the outset of the crime expedition or it may
arise spontaneously on the spur of the moment.
The Court of Appeal for East Africa has held that common intention generally
implies premeditated plan, but this does not rule out the possibility of a common
intention during the course of events though it might not have been present to start
with.
See Wanjiru vs. R Vol. 22 EACA 521. Thus where a gang sets out together to kill
and a person is killed by one member of the gang, all members of the gang are guilty
of murder, where three persons set out armed with lethal weapons with a common
intention of stealing goats and in order to fulfill their purpose kills the custodian of
the goats, all are liable to be convicted of murder.
It is murder to kill in the course of a felony but it is uncertain whether a common
intention to steal makes a gang of thieves all responsible for death caused by one its
members. What is certain is that there must be at least a common intention to offer
violence in pursuit of the common intention to steal. This common intention to use
violence may be inferred from the fact that a gang is armed with lethal or dangerous
weapons even if one of them is so armed.
Where there is an intention to kill that intention can be presumed to continue
throughout the course of the action.
See R vs. Ojambo s/o Nambio. The deceased was caught stealing in the appellant’s
shamba and tied up the appellant and beat the deceased so severally that on being
untied he fell down and seemed to be dead. Appellant believing, he was dead
removed his body to a swamp. The deceased in fact was alive and died of asphyxia
resulting from the immersion in the muddy water. The immersion in water was so
closely connected with the beating as to constitute one continuous transaction, the
cumulative effect of which was to cause death. Accordingly, appellant’s offence was
Murder. It would have been no defense to argue that the immersion in water was not
accompanied by malice aforethought for the beating and the immersion in water
together constituted the malice aforethought.
In Thabo Meri vs. R [ 1954] 1ALL E.R 377, the appellant had a pre-arranged plan,
they took a man to a hut and gave him beer and he became partially intoxicated.
Later, they struck his head and believing him to be dead took his body and rolled it
over a cliff with an intention of making the murder look accidental. In fact, at the
time, the man was not dead but died a few minutes in exposure during his
unconscious state of mind at the foot of the cliff. The question was whether these
accused were guilty of the offence of murder. Lord Reed held that there were two
acts done separately, the first in the hut and another by placing the body out. While
the first was accompanied by malice aforethought, it was not the cause of death. The
second act caused death. It was difficult to separate the two acts which formed a
series of acts because the accused set to do all the acts to achieve a plan. Therefore, it
is wrong to say that because they were of mistaken belief at one stage, their purpose
thought had been achieved before it was and cannot escape the penalties of law.

2.2 IMPLIED MALICE

It is murder where a person does an act causing death that is intrinsically likely to
kill and which he knows is likely to kill although there is no evidence of express
malice. Thus if a person sets fire to a house knowing or having reasonable grounds
for believing that a person is asleep inside, he is guilty of murder for the death, for he
knows that the probable consequence of his act will be to cause death. See Hyam vs.
DPP and R. vs. Tirugurwa 10 EACA 44. It is immaterial whether the person
against whom the act has been directed is the person actually killed or whether it is
somebody else provided that there was foresight of the consequences of his acts. It is
also immaterial that the accused did not want to cause death.
In Hyman vs. DPP, the appellant set fire to a dwelling house by deliberately pouring
about ½ gallons of petrol. The house contained four persons presumably asleep. She
did nothing to alert them of the danger she had put them in. Her act was that of
jealousy against the owner of the house whom she believed to be engaged to a man,
she had temporally discarded. Two girls died due to the fire. Her defence was that
she intended to frighten the lady off the village and she did not intend to cause death
or bodily harm. The issue was whether death resulted from the direct intention to kill
or willful doing of an act of which death is a probable consequence. It was held that
the appellant was guilty of murder when she set fire to a house, she should have

10
realized that it was highly probable that one or more of the inmates would suffer
serious bodily harm in consequence of her act not limited to harm of such nature as
to endanger life.
In R vs. Serne, (1887) 16 Cox 331, it was held that a person who sinks a ship at sea
of his own does not escape liability for the drowning of passengers by hoping that
they will be picked by a passing vessel. This is because a man is presumed to know
the natural and probable consequences of his acts unless the contrary is proved.
In Hull vs. R 1664, a workman, after shouting, ‘stand clear”, threw down a piece of
timber from a house two stories high. All the work men below moved except for one
who was killed. It was held that “when a workman flings down a stone or piece of
timber into the road and kills a man, this may either be misadventure, manslaughter
or murder, according to the circumstances under which the original act was done. If
it were in country village where there are a few passengers and he calls out all people
to take care it is a misadventure only but if you were in London or other popular
towns where people are continually passing it is manslaughter, though he gives loud
warning and murder if he knows of their passing and gives no warning at all”.
Knowledge that death is likely to result is enough.
In Mongola Vs. R [ 1963] R and N 291, the appellant abandoned his seven months’
child in a thicket sufficiently far from the village so that its cries could not be heard
and in such a place that a search would not readily discover it. In upholding his
conviction for murder, the Court applied the principle in RVs. Ward. In this case the
judge had directed a jury that when the prisoner did the acts he must as a reasonable
man have contemplated that death or grievous harm was likely to result. He was
guilty of murder. In the case, the appellant as a reasonable man must have known
that death or grievous harm would probably befall a child abandoned in such a
remote area.

2.3. CONSTRUCTIVE MALICE.

There is also constructive malice, which is probably covered under section 191(b).
Any reference to intention inferred from the fact that the accused were taking part in
the commission of another crime was equally removed by the 1970 amendment. The
law is not clear, where this type of malice aforethought falls. Nevertheless,
authorities establish that where it is killing in the course of burglary it is immaterial
that a minor blow which caused the deceased’s death was inflicted.
In Sentali vs. R Vol. 20 EAC. 230, the appellant was convicted of the murder of a
woman as a result of violence inflicted on her by the appellant in the furtherance of
his committing a felony in her house. It was held that by virtue of S. 186 (c) of the
Penal Code Act, if death is caused by an unlawful act or omission done in the
furtherance of an intention to commit a felony, malice afore though is established.
Court said “in our opinion, the possession, by the appellant of cloth belonging to the
deceased coupled with a broken door and the disorder in the house all lend
irresistibly to the conclusion that the appellant’s purpose in entering the deceased’s
house that night was to commit a felony if, then it was with this felonious intention
or purpose of his mind that the appellant offered violence to the deceased, it matters
not what degree of violence was used if the violence did in fact however
unexpectedly or unintentionally cause death……..In Uganda it is sufficiently if death
be caused by an unlawful act or omission done in furthermore of an intention to
commit any felony”.

2.4 DEFENCES TO MURDER

These are categorized into partial and complete defences. A complete defence is one
which if successfully raised leads to the acquittal of the accused of the offence of
murder. A partial defence has the effect of reducing the offence to manslaughter.
Generally, the defences to murder include diminished responsibility, under section
194 of the Act, Mistake of fact under section 9, and Intoxication under section. 12,
Provocation under sections 192, and 193 and defence of person and of property
under section 15. With the exception of diminished responsibility and insanity which
must be proved by the accused. All other defenses must be disproved by the state.
The Court must avail the accused any defence that appears on the evidence even if
the accused has not specifically raised the same. See Kiyengo vs. Uganda [ 2005]2
E.A 106
2.5 DIMINISHED RESPONSIBILITY
The British equivalent of S. 194 of our PCA was considered in case of R vs. Byrne [
1960] ALL ER The appellant admitted strangling a girl in a hostel and mutilating
her dead body. Medical evidence showed that the killing was under the influence of
his perverted sexual desires. He would suffer from violent sexual desires such that he
would find it difficult to control his desires he would be a normal person when under
those sexual desires. At the time the accused killed the girl he was suffering from
perverted sexual desires. It was important to consider whether the accused was
insane in the sense as laid down in the M’Naghten case or as a case of psychopathy
and could be properly described by partial insanity. The defence has also been
considered in several other cases such as R vs. Dunbar [ 1958] 1QB 1, R vs. Morris
[ 1961] 2 QB 237, R vs. Bathurst [ 1968] 2 QB 99 and R vs. Walden [ 1959] 1W.L.

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R 1008. The key difference in the application of this defence in Uganda and in the
United Kingdom is that in the latter jurisdiction, the accused is convicted of
manslaughter, where as in the former jurisdiction, the accused is convicted of Murder
but with diminished responsibility.
In the Byrne case, the issue in court was whether the accused at the time of killing
was suffering from any abnormality of mind. Court reduced the charge to
manslaughter. The Court in passing the Judgment held that ‘Abnormality of mind’,
which has to be contrasted with the time honored expression in the M’Naghten Rules
‘defect of reason’ means a state of mind so different from that of ordinary human
beings that the reasonable man would term it abnormal. It appears to us to be wide
enough to cover the minds activities in all its aspects, not only the perception of
physical acts and matters, and the ability to form a rational judgment as to whether
an act is right or wrong, but also the ability to exercise the will power to control
physical acts in accordance with the rational judgment. The expression ‘mental
responsibility for his acts ‘points to a consideration of the extent to which the
accused’s mind is answerable for his physical acts which must include a
consideration of the extent of his ability to exercise will power to control his physical
acts. Whether the accused was at the time of the killing suffering from any
‘abnormality of mind in the broad sense is a question of fact for the jury. On this
question medical evidence is no doubt of importance, but the jury is entitled to take
into consideration all the evidence, including the acts or statements of the accused
and his demeanor. They are not bound to accept medical evidence if there is other
material before them which, in their good judgment, conflicts with it and outweighs
it. The aetiology of the abnormality of mind (namely whether it arose from a
condition of arrested or retarded development or any inherent causes, or was induced
by disease or injury) does, however, seem to be a matter to be determined by expert
evidence…”
This defence is related to insanity, it applies to murder and it was developed because
there are many people who have mental problems but who cannot satisfy the strict
interpretation of insanity. Imbeciles and idiots are not legally insane and thus fall
under this category. In a trial for murder, it is for the accused to show that he/she
comes under S. 194 of the Act and where such a defence is raised successfully, a
person shall never the sentenced to death but is to be convicted of murder but with
diminished responsibility meaning the convict will not be sentenced to death but put
in safe custody and dealt with under section 105 of the Trial on Indictment Act. The
Supreme Court has had opportunity to consider this defence in the case of
Rukarekoha vs. Uganda [1999] E.A. 303 where Mulenga, JSC, gave some
guidance to the application of the defence and also disapproved some commentary
made on the defence by Collingwood, in his book, Criminal Law of East Africa and
effectively overruled Uganda vs. Kankuratire [ 1975] HCB134.
3.0 INTOXICATION
This is only a defence if it renders the accused incapable of forming the necessary
mens rea for murder. Intoxication can be caused by alcohol or drugs. The Supreme
Court recently considered that defence and held in the case of Kiyengo vs. Uganda
[2005] 2 EA, 106 “that in considering the defence of intoxication, the question was
not whether the accused person was or was not capable of forming the intention but
rather whether by reason of the drink taken, he did not form the intention. In this
instant case, the Court of Appeal had correctly directed itself on the question of
intoxication in stating that intoxication could become a defence under section 13(4)
of the Penal Code Act and could be taken into account for the purposes of
determining whether the accused had formed an intention to kill. The test to be
applied was whether, having regard to the circumstances, including those related to
drinking, it could safely be said that the prosecution had proved beyond reasonable
doubt that the accused had the requisite intent at the material time.”
Evidence which shows that the accused’s mind was so affected by drink that he
readily gave way to some violent acts affords no defense.
See DPP vs. Bead [ 1920] AC 479, nor does an accused have a defence where he got
himself drunk in order to give himself the courage to carry out some purpose. In
some cases, so far from being a defence it can be an aggravating factor for sentence.
See A.G vs. Gallagher (1961)3 ALL E.R 299 Gallagher suffered from
psychopathy, a disease of the mind which could be aggravated by drink to cause him
more readily to lose control of himself. When sober, he formed the intention of
killing his wife; he purchased a bottle of whisky of which he may have drunk some
of it before he killed his wife with a knife. The HOL affirmed Gallagher ‘s
conviction for murder holding that: -
1. The defence of insanity could not be made good with the aid of whisky.
2. The defence of intoxication was not available because the accused had
already formed the intention to kill before he took the whisky.
Lord Denning said;
“A psychopath who goes out intending to kill knowing it is wrong and does kill
cannot escape the consequences by making himself drunk before doing it.”

Total lack of purpose or motive may be ground for court to infer intoxication
negatives mens rea.
In Kinuthia s/o Kamau vs. R 17 EACA 137, the accused without any apparent
motive or purpose smashed a window chased a small boy, struck a person on the arm
with a panga threw it at him and then struck the deceased in the back of the head

14
with a piece of firewood. Throughout, the incidents, there was evidence that the
accused fell down and stood up. He was later found asleep on top of a panga and
smelling heavily of alcohol. Conviction for murder was substituted with
manslaughter.
This case should be contrasted with:
R vs. Chirwa Vol.5 NRLR 212 where the accused returned from a beer party in the
early hours of the morning apparently in search of a man whom he alleged to be
responsible for a wound on his temple. The accused engaged in an intercalation and
fighting first with one chithembi and then with the deceased who died as a result of
kicks by the accused to the face and head. Court found that the accused at the
material time was able to be selective as to those whom he chose to assault and that
he was able to talk to a number of persons without assaulting them. Indeed,
throughout the period to which the evidence is related, the prisoner was able to keep
his objective of trying to find this man. See also Ssesawo vs. Uganda [ 1979] HCB
122 and Illanda vs. R [ 1960] E.A 780.
4.0 INSANITY
In Nyinge Suato vs. R [ 1959] E.A 974, under delusion that an inspector of police
was plotting his death, the accused killed him. He surrendered to the police and
stated that having killed the inspector; I have come here to be killed because they
want my head. The issue was whether the accused did raise the defence of insanity.
The Court decided that the defense of insanity depends on the nature of delusiveness.
Thus where the accused say I have come to be killed indicated that he knew that
what he had just done was wrong and was accordingly merely meeting a justifiable
killing.
4.1 DEFENCE OF PERSON AND PROPERTY
The killing of another is justifiable where an accused acts without vindictive feelings
and believes on reasonable grounds that a person’s life is in eminent danger and that
his action is absolutely necessary for the preservation of life.
In R vs. Marlin 5 NRLR 79, a quarrel arose between the accused and his wife. The
wife rushed out of the room saying that she was going to shoot herself. The accused
followed his wife and found her in the kitchen with a short gun in her hand. He
thereupon struck her on the jaw, and the wife fell and injured her skull fatally.
Woodman C.J upheld the defense submission that the accused had no case to answer
on a charge of manslaughter. He ruled: -
1. The accused had reasonable grounds for believing and honestly believed that
the blow was necessary to prevent the deceased from committing suicide.
Therefore, his act in striking the blow was excusable.
2. Where a person acting on the spur of the moment commits an assault in order
to prevent a crime of violence, he cannot be held liable merely because it
transpires that other alternative methods were in fact open to him provided
 his primary motive was a reasonable and honest belief that his action was
necessary.

The force used should not be excessive in the circumstances.

In Marwa s/o Robi vs. R [ 1959] E.A 660, the appellant speared the deceased to
death after a cattle dispute. The deceased claimed some cows and had gone to collect
them when he was speared. The deceased had carried a stick but no force was used
against the appellant. The appellant raised the defense of defence of property.
Evidence was not clear that the deceased was legitimate owner of the cows. In
dismissing the appellants’ defense, Court had this to say at pg. 663, “…it must be a
question of fact in each case whether the degree of force used in defence of property
which caused death was in the particular circumstances of the case, justifiable or if
not justifiable whether it was such as to amount only to manslaughter or was so
excessive as to constitute the offence of murder. In the instant case, the trial judge
stresses that the appellant was well aware of the existence of a peaceful method of
settling the dispute. All the circumstances must be taken into account including this
aspect of the matter. As we see it, there was no case of an attempt to commit a
forcible crime. It was the culmination of a civil dispute between a father in law and
son in law. There is no suggestion that any violence was used or threatened to the
person of the appellant that he believed to be in any danger. No doubt in driving off
the cattle, the deceased was committing a trespass but the means adopted by the
appellant to resist the taking of the cattle seems to us to have been utterly out of
proportion to the tort which was being committed. The appellant was not doubt
entitled to use reasonable force to prevent the taking of the cattle and if in good faith
he had used more force than was reasonable and had therefore killed the appellant no
doubt the offense would only have amounted to manslaughter, the force actually used
however was a thrust in a spear through the chest which was clearly calculated to kill.
We can see no distinction between such use of lethal weapon like a spear and the use
of a firearm. The weapon and its method of use leave no doubt that intent was to kill
and not merely prevent the removal of the cattle. There can be no justification in law
for deliberate homicide in these circumstances and we have no doubt that subject to
the question of provocation, the offence is murder.”
In Ojepan Ignatius vs. Uganda, Criminal Appeal, 25 of 1995, it was held that it is
based on common sense that a man who is attacked may defend himself. It is both
good law and good sense that he may do, but may only do what is reasonably
necessary. But everything will depend on the particular facts and circumstances. The
appellant having been drinking Malwa together with the late PC Bahirwe, PC Oumo

16
and others for almost 7 hours in their police Barracks, he was incapable of forming
the necessary intent to constitute the offence of murder. Thus there was sufficient
evidence on record to support the trial Judges’ findings that the appellant was by
reason of intoxication incapable of forming the necessary intent to constitute the
offence of murder. Therefore, the appellant was rightly convicted of manslaughter
contrary to section 182 of the Penal Code Act.
There is no justification where the force has been withdrawn.
In Yusuf s/o Leso vs. R EACA 249, the appellant was woken up by a noise as
someone digging at a wall at the back of his house, he seized a bill hook and seeing
two people running away pursued them. He chased one for 100 yards before catching
him and killing him with a bill hook. Court held that there was no ground for
interfering with a conviction for murder.
In John Bisset v Uganda, the appellant alleged that he and his wife were in their
house at night when students threw stones on the roof of the house. He got hold of
his gun loaded it and went outside. He shouted at students to stop throwing stones
which they continued. He then fired three shots in the direction of the dormitory to
frighten away the students. He then went into his car to report the matter to the
police. He alleged that students hit his car with stones. He took hold of his gun and
fired again in the direction of the students. Two shorts landed in the body of the
deceased of which he died a few hours after. He was charged and convicted of
manslaughter. Court held that he had not been attacked when he fired the first shot.
When he reloaded that gun, there was absolutely no threat against him from anyone.
The whole of his conduct showed a man of the most truculent nature who would
fight to kill against any slight attack on him. In the course of judgment, presiding
judge observed that the English law on self-defense is the same as that of Uganda
and stated that, “if a person against whom a forcible and violent felony is being
attempted repels force by force and in so doing kills the attacker, the killing is
justified, provided there was a reasonable necessity for the killing or an honest belief
based on reasonable grounds that it was necessary and the violence apprehended
from the attacker is really serious.”
4.2 MISTAKE OF FACT
Mistake of fact means there is no mens rea.
In H.M Advocate V Fraser (1874), a man dreaming that he was struggling with a
wild beast killed his baby. He was discharged. Apart from a defense of automatism,
He was laboring under a genuine mistake of which assuming that it was true would
not have been crime.
In Chabijan vs. R 12 EACA 104, the appellant deliberately killed his father and
because he honestly held the opinion that the father was at that moment killing the
appellant’s son by super natural means as surely as if he had seen him in the act of
using a lethal weapon against the son. If this belief was reasonable in law, the
appellant could have had a defence because he would have been acting under a
mistake of fact in defence of his own son but Court held that belief in witchcraft was
not a reasonable mistake in law. In R vs. Sultan Maginga, the deceased people, with
a woman were lying in a rice field after sexual intercourse. The sultan was going to
guard against wild pigs. He saw movements of grass and he called to ask whether it
was an animal or people. There was no reply and Sultan threw a spear and killed a
human being thinking it was a pig.
A Murder charge was not sustained because it was a case of mistake of fact.

5.0 PROVOCATION
A killing that would normally constitute murder done in the heat of passion caused
by sudden provocation and before there is time for the passion to cool amounts to
manslaughter under section 192 of the PCA. Provocation means any unlawful act or
insult of such nature as to be likely when done or offered to an ordinary person or in
his presence to the person within specified degree of relationship, as to deprive him
of the power of self-control and to cause him to commit an assault of the kind which
the person charged committed upon the person by whom the act or mission is done.
It is not for the accused to establish provocation as a defence. If there is any evidence
of provocation the court cannot convict him of murder unless satisfied that the
prosecution has proved beyond reasonable doubt either that there was no provocation
or if there was provocation that what was done in the assault could not be recognized
or what an ordinary person in the community who had lost control of himself might
have done. The reasonable retaliation is gauged according to circumstances and
community of the accused. It must be shown that the killing was in the heat of
passion and there was no time for it to cool. The law in this area has just been
restated by the Court of Appeal in the case of Kato v. Uganda [2002]1E. A 101.
In R vs. Hope 14 EACA 105, the appellant killed a man under the honest belief that
he was responsible for the death of a relative. It was held that provocation was not
available because the appellant had held this belief for several days before the
killing.
Provocation must be sudden
R vs. Jezalani 14 EACA 70, the husband /appellant knew of his wife’s misconduct
and unfaithfulness with her former husband. When the wife told the husband that she
wanted to leave him for her former husband, he killed her. The defence of
provocation did not succeed on a charge of murder because the alleged provocative
act was not sudden.

18
Provocation should consist of a wrongful act.
A lawful act cannot amount to a legal provocation. The following acts have been
held wrongful acts which together with the other elements of defense may amount to
legal provocation; the homicide of the accused’s father, R vs. Wasonga 15 EACA,
an attack on an accused’s wife, Matendekyera, trespass to property, Marwas case and
a verbal insult of a gross nature.
In R vs. Mwanyi EACA 40, it was held that to use a panga in a negligent manner
thereby causing harm to the person struck may be wrongful act. For a wrongful act to
constitute legal provocation, it need not be more than a tortious one. As such it is
sufficient to constitute legal provocation if the person, struck honestly and
reasonably but mistakenly believes that he is the victim of the wrongful act and in
that belief kills the person who striked him.
Generally, vulgar abuse or refusal of sexual intercourse is not sufficient provocation
unless contained with other circumstances. Accordingly, it is a question of fact
whether a vulgar abuse or refusal of sexual intercourse will provide a defense on the
charge of murder.
The provocation must be such as to deprive an ordinary person, of the class to which
the accused belongs of his power of self-control. Again this is a question of fact and
the test of the reasonable man is so much applicable.
See King V Lesban [ 1914] 3 KB 116 The provocative act must be done in the
presence of the accused.
See Gaboyes case 16 EACA 140. The appellant’s half-brother, K, had been
rendered unconscious by the blow delivered by the deceased. The appellant asked K
whose face was covered with blood who had beaten him and K replied it was the
deceased. The appellant thereupon went to the deceased’s hut and delivered on his
head a fatal blow fracturing his skull. It was held that although the sight of his
brother’s bleeding must have angered the appellant; there was no provocation
according to section 202 of the TZ Penal Code Act as the wrongful act was not done
in the presence of the appellant.
The provocative act done in the presence of the accused will be a provocative
act when it is done either towards the accused or towards a person to whom the
accused stands in specified relationship including master and servant
relationship. The retaliation must bear a reasonable relationship to the provocation.
In Obielo vs. R 16 EACA 139, the appellant killed her former mistress by inflicting
four blows on her head with a panga. The woman who was suspected by the
appellant of having made of a considerable sum of money had slapped him and spat
at him. It was held that the appellant was liable for murder as his mode of resentment
was out of relation to the provocation.
It has also been held that an accused is not deprived of the defense of
provocation if when provoked by A, he mistakenly or accidentally kills B in
attacking A.
See Nyanya vs. R 23 EACA 593 and R vs. Alayina [ 1957] R&N 536, where the
accused went after dark in search of her husband. She found him under blanket with
a young girl. The accused immediately attacked the girl and in the course of the
struggle in the darkness of the hut at night, the girl’s grandmother who was also in
the hut was fatally stabbed her. It was held that there was provocation sufficient to
reduce murder to manslaughter. Where an accused is involved in a fight, the defense
of both provocation and self-defense may be open to him or her.

Legal provocation will operate to reduce Murder to manslaughter even where

there has been an intention to kill. Provocation is only a defense to murder not
to any other charge. In the other charges, it may operate to mitigate sentence.
The test in provocation is whether an ordinary member of the accused community
would have been provoked in retaliation in the same manner as the accused did. R
vs. Maziku 8 EACA 55, a watchman was baited by a gang of young men who also
called him a term of vulgar abuse. The watch man who was an irritable old man then
threw a spear at the youth killing the deceased. The watch man was convicted of
murder. On appeal, the Court said that the test was not whether an irritable old man
would have been deprived of his self-control but rather an ordinary member of the
watchman, class would have been so deprived.

The provocative act must be done in the presence of the accused and there must
not be time for the passion to cool.
In Thuku vs. R [ 1966] E. A 496, the appellant arrived home one night in a drunken
state and found his step father (deceased beating his mother) When the appellant
tried to intervene, his step father hit him twice with a stick and told the appellant not
to interfere. The appellant entered into the house and slept for a few hours until he
was awakened by the deceased calling him. Ongoing outside the house, the appellant
found his mother dead with a severe wound on the back of the head and the deceased
standing nearby. The appellant removed his mother’s body in the shed, fetched a
panga from the house and chased the deceased about 300 yards. The appellant and
the deceased then exchanged words which apparently made the appellant angrier.
Both men started walking back to where the body lay when the appellant attacked the
deceased with the panga and killed him.
The Court of Appeal for E.A held;

20
 1. The events were so continuous as to make the acts of killing the mother so
proximate to the appellant as constructively to have been done in his
presence.
2. In considering whether there is time for passion to subside the degree of
provocation offered is a relevant factor.
3. In the instant case, the appellant killed the deceased when he was still acting
in the heat of passion without regaining his self-control. Provocation
therefore reduced murder to manslaughter.

5.1WITCHCRAFT AS PROVOCATION
In Galikuwa VR 18 EACA 175, Court laid down the rules inter alia relating to
defense of provocation in witchcraft cases.
1. The act causing death must be shown to be done in the heat of passion that is
to say in anger. Fear of immediate death is not sufficient.
2. If the facts establish that the deceased was performing some acts in the
presence of the accused which he believed and an ordinary member of his
community would generally believe was an act of witchcraft against him and
the accused was so angered as to be deprived of self-control, the defense of
grave and sudden provocation is open to the accused.
3. Belief in witchcraft per se does not constitute a circumstance of excuse of
mitigation for killing a person believed to be a witch or wizard where there is
no immediate provocative act.
4. The provocative act must amount to an offence under criminal law.
5. In the Galikuwa case, a witchdoctor threatened the appellant with death
unless he paid him shs1000. Later the appellant being unable to pay the said
sum killed the witch doctor in an honest belief that he was saving his life
from witchcraft. It was held that this was murder. There was no immediate
provocative act. “A mere threat to cause injury to heath or even death in the
near future cannot be considered as a physical provocative act”

An overt physical act of witchcraft may amount to provocation.

In R v Fabiano Kinene 8 EACA 96, the appellants appealed from conviction of
murder. The deceased had died from shock resulting from the forcible in insertion
into his bowel through the anus of urine bananas by the appellant immediately they
had caught him. Immediately they had caught him crawling about naked in their
compound. They believed the deceased was a wizard who had caused the death with
their relatives by witchcraft and had caught him in the act as they thought of
bewitching them and therefore killed him in the way in which the older times was
considered proper for the killing of a wizard. Put the other way, the appellant
believed that the witch doctor had caused the death which many people/ relatives by
witchcraft. One night they found the witch doctor crawling naked in the compound
and believed to be in the act of bewitching themselves, they fell upon him and killed
him in a gruesome manner considered fitting for the death of the witch doctor in
olden days. The Convictions for murder substituted with manslaughter because of the
deceased’s provocative acts.

The belief that the person is presently causing the death of a relative by
supernatural means is not a reasonable one in law.
In R vs. Kajuna 12 EACA 104, the appellant killed his father in the honest belief
that he was causing the death of his child by witchcraft. He had set out on a long
journey with the express intention to kill his father. It was held that this was murder.
In Rauben Bagamuhunda v Uganda, Criminal Appeal No 2 of 1987, it was held
that once he found as a fact that the appellant had killed the deceased by burning he
had tied him up and beaten him very badly, the learned Ag. Judge could have
convicted the accused of murder. Whereas the appellant suspected the accused of
having bewitched his brother to death, that alone could not sustain the provocation.
In any case the appellant attacked the deceased long after the death of the appellant’s
brother so that there was no provocation within the meaning of the section of the
Penal Code.
In Victory Kigora vs. Republic, E.A.C.A Crim Appeal 161-DSM-75 1977 LRT
N.45, the appellant killed the deceased, his father, by cutting the latter to death with a
panga. The deceased was reputed to be a wizard in the village. The appellant
genuinely believed that the deceased, by means of sorcery and witchcraft, had caused
the deaths of the deceased’s own father and those of his sons and daughters. Not long
before the killing, according to the appellant, the deceased had caused the deaths of
the deceased’s own father and those of his sons ‘and daughters. Because of his
notoriety as a wizard and his evil deeds, the deceased was sent out of the village.
After sometime however, he managed to get permission to return to the village. Not
long after his return to the village, the deceased met the appellant in a pombe shop
and the deceased abused the appellant. The appellant tried to avoid the deceased by
leaving the pombe shop, but the deceased followed the appellant and continued to
abuse him. He told the appellant that he was going to kill the appellant and the
appellant’s wife in the same way as he had killed the others, that as he was an old
man he was not afraid of death and since he had even killed his own father, he was
sure he would vanquish the appellant. The appellant said that he was so angered by

22
the torrent of abuse and words that he lost control of himself and in his passion
attacked and killed the deceased. It was held;
1. A belief in witchcraft per se will not constitute circumstances of excuse or
mitigation when there is no provocative act.
2. A provocative act is not confined to an act of witchcraft being practiced
against the appellant at the material time.
3. A genuine belief by the appellant that the deceased had by witchcraft caused
the deaths of his relatives coupled by words an insults by the deceased against
the appellant in such circumstances as to cause any reasonable person of the
appellant’s community and actually causes the appellant sudden and
temporary loss of self-control amount legal provocation.
4. When it has been established that legal provocation exists, the fact that a
number of wounds have been inflicted does not prevent the offence from
being one of manslaughter

6.0 INFANTICIDE
Under S. 213 of the PCA, where a woman any willful act or omission causes the
death of her child being a child under the age of 12 months but at the time of the act
or omission the balance of her mind was disturbed by reason of her not having fully
recovered from the effect of giving birth to the child or by reason of the effect of
lactation consequent upon the birth of the child, then, notwithstanding that the
circumstances were such that but for the provisions of this section the offence would
have amounted to murder, she commits the felony of infanticide and may for such
offence be dealt with and punished as if she had been guilty of the offence of
manslaughter of the child.
It is only a woman who can be charged under the section or who can raise the
defense of infanticide and the child killed should be the child of that woman offender
and affected by the very circumstances in the section i.e. not having fully recovered
from the effect of giving birth or by reason of the effect of lactation.
The standard of proof in section 213 is not as high as that required for insanity
because the defense of insanity leads to acquittal whereas infanticide has the effect of
reducing the charge of murder to manslaughter. The burden of proof of loss of mind
is upon the offender. In R vs. Namayanja Vol. 20 EACA 204, the appellant an
unmarried girl of about 20 years was convicted of murder of her newly born child.
The appellant had never told her parents with whom she lived of the pregnancy and
neither did they know of it. On 5th February 1952 at about 5:30 p.m. the father on
going to the latrine heard a child crying in the pit under him. He and his wife dug out
the new born child still alive who died in hospital at 7:20 a.m. the following day. At
her trial, the appellant alleged that she felt unwell on 4th February and worse on the
following day. About 4 p.m. she went to the latrine. She did not know she was going
to deliver and whether she had extruded the child or not but that when she was told
of the child in the latrine, she realized that it was hers. It was held that where a newly
born child has been abandoned the issue of a homicidal intent is a matter of inference
but the inference must be one beyond any reasonable doubt before a conviction of
murder can be entered. The standard of proof required to show disturbance of the
balance of the mind can’t be so high as in the case of a defence resting on insanity
and taking into account the girl’s age, the fact that it was her first baby, the fact that
pregnancy was unknown by the parents, her act of leaving the child without calling
for help was due to panic fear and despair. She was acquitted and set free.
In R v Soanes [ 1948] ALL E.R 489, a day or two after she had been discharged
from the hospital where after a normal confinement she had given birth to the child,
the prisoner killed the baby by fracturing the skull in two places and threw it into a
canal. She had stayed in hospital for a longer time than normally and indeed from
first to last, there was nothing to suggest that she was otherwise than normal and in
possession of all her faculties. At her trial she pleaded guilty to the lesser offence of
infanticide which the crown counsel accepted but which the judge refused on the
ground that there was no indication on the deposition that the circumstances existed
which must exist before a verdict of infanticide can be returned. It was held that there
was nothing disclosed on the deposition which would have justified a reduction of
the charge of murder to infanticide and accordingly the appeal was refused, the Court
holding that the judge rightly insisted on murder.

7.0 MANSLAUGHTER
Under section 187 and 190 PCA, a person who by an unlawful act or omission,
causes the death of another person commits the felony of manslaughter and on
conviction is liable to be imprisoned for life meaning that imprisonment for life is the
maximum sentence available and therefore anything less than life imprisonment may
be imposed depending on the circumstances of the case. For the purposes of
manslaughter, unlawful omission is an omission amounting culpable negligence to
discharge a duty tending to the preservation of life or health whether such omission
is not accompanied by an intention to cause damage or grievous harm. According to
Smith and Hogan, Criminal Law, manslaughter is a diverse crime, covering all
unlawful homicides which are not murder. A wide variety of types of homicide fall
with this category, but it is customary and useful to divide manslaughter into two
main groups which are designated “voluntary” and “involuntary” manslaughter
respectively. The distinction is that in voluntary manslaughter. D may have the
malice afore thought of murder, but the presence of some serious grade of homicide,

24
where these circumstances are present, and then D. may actually intend to kill and do
so in pursuance of that intention yet not be guilty of murder. See AG vs. Ceylon
Perera (1953) 1 ALLE R 73, Parker vs. R (1964) AC 1363, (1964) 2 AIAER
6441. Contrast with Holmes vs. DPP (1946) AC 588 AT 598.

 At common law voluntary manslaughter was confined to circumstances

of provocation, but under the penal code, it is voluntary manslaughter in
circumstances of a suicide pact. See S. 195.
 Involuntary manslaughter includes all varieties of unlawful homicides
which are committed without malice afore thought. There is a vague
borderline between manslaughter and accidental death.
In Andrews v DPP [1937] AC 76 at 581, [ 1937] ALLER 552 Lord Atkins said:
“Of all crimes, manslaughter appears to afford most difficulties of definition, for it
concerns homicide in so many and so varying conditions. The law recognizes murder
on the one hand based mainly, though not exclusively, on an intention to kill, and
manslaughter on the other hand, based mainly, though not exclusively on the absence
of intent to kill, but with the presence of an element of “unlawfulness “which is the
elusive factor.
This “elusive factor” is obviously difficult to define: but it would seem to comprise
at least two, and perhaps three, varieties of fault: -
1. An intention to do an act which, whether D knows it or not, is unlawful and
dangerous in the sense that it is likely to cause direct personal injury, though
not necessarily serious injury.
2. Where D does an act which creates an obvious and serious risk of causing a
personal injury to another.
• Not giving thought to the possibility of there being any such risk or
• Having recognized that there was some risk involved, going on to take it.
3. An intention to do an act, or to omit to act where there is a duty to do so being
grossly negligent whether death or serious personal injury is caused.

Manslaughter is generally distinguished from murder by the absence of malice

afore thought. Cases establish that killing will be unlawful amounting to
manslaughter if-.
1. Foresee as likely to cause death or grievous bodily harm.
2. There is an intention or negligent omission to perform a duty recognized by
the law of homicide.
3. There is criminal negligence.

It is manslaughter where death results from an unlawful act directed against

the person and involving a considerable risk of injury but where no reasonable
man would foresee as likely to cause death or grievous harm.
See R vs Larkin 1943 Vol. 29 Cr. App 18 and R vs. Church (1965)2 WLR 1220,
the Court stressed that proof of mens rea is essential to manslaughter in regard to
dangerous acts against the person. Edmund J. said that for a verdict of manslaughter
to follow, the unlawful act must be such as all sober and reasonable people would
inevitably recognize must subject the other person to at least the risk of some harm
resulting there from although not serious harm.

It is manslaughter to intentionally or negligently omit to perform a legal duty

tending to the preservation of life or health so that death results. It is immaterial
whether such an omission is or is not accompanied by an intention to cause death or
bodily harm. Indeed Chap. 19 of the PCA imposes duties and responsibilities upon
specified persons aimed at preservation of life and health e.g. the responsibility is
imposed on a person who has charge of one to provide for necessities of life – S. 199.
A duty is imposed on the head of family to provide all necessities of life to children
under 18 years (S.200) a duty is imposed on masters to provide for students under 16
years the necessities (S.201), a duty is imposed on doctors and other persons doing
dangerous acts to exercise reasonable care and skill in performing their duties so as
to preserve life and health (S.203) and a duty is imposed on persons in charge of
dangerous things to ensure that they don’t cause danger.
In R v Laximidas 1957 R & N 73, the Court said that in a charge of manslaughter
by omission, it is necessary for the prosecution to prove three things.
1. That the accused owed a duty to the deceased
2. That the accused omitted to carry out that duty and that the omission
amounted to criminal negligence.
3. That the omission caused the death of the deceased and for this purpose, it is
sufficient to prove that the omission hastened the death.

Such persons who have a duty to preserve life of others include: -

1. Persons having charge of another who is unable by reasons of age, sickness,
unsoundness of mind, detention or any other cause to withdraw from such
charge.
2. Heads of family having charge of children under 14 years
3. Employers
4. Medical workers and similar persons in relation to their patients.
Persons in charge of dangerous things have a duty to undertake reasonable care and
precaution to avoid danger to life, safety or health. Dangerous things may include
machinery and animals.

26
For purposes of manslaughter, the omission may take a variety of forms.
In R vs. Instant (1893) 1Q B 450, it took the form of denial of food and nursing
during the last days of the life of an elderly relative. However, where the evidence
clearly shows an intention to cause death the willful withholding of food would be
murder.

The omission may be failure to provide skilled medical care or negligent

medical care.
In R vs. Watson (1959) Q B 134, the child of the two accused suffered severe harm
from scalding and died three days later. The parent lived only three doors away from
the doctor’s surgery but didn’t send for the doctor until the child was dead. They
were convicted of manslaughter.
In Tipezenji vs R [ 1960] R & N 504, the appellant gave birth to a child which was
accidentally precipitated into a pit latrine. Although the appellant knew the baby was
alive in the latrine, she did nothing to save the child with the result that it died. It was
held that the accused’s mother had a duty to try and save the life of a child and the
failure to act amounted to manslaughter.
It was observed that if the mother had willfully abandoned the child with the
intention to kill it the charge might well have been murder although would be
infanticide if the balance of her mind was upset by the effects of child birth.

CAUSATION IN HOMICIDE- Section 196 of the Act

This section is relevant where the accused acts are not the only or immediate cause
of the death of the deceased. In a clear cut case of immediate killing by an act of the
accused, this section has no relevancy.
1. Under section 196(a) a person is deemed to have caused death if he inflicts
bodily injury on another person in consequence of which that other person,
undergoes surgical or medical treatment which causes death. It is immaterial
whether the treatment was proper or mistaken, if it was employed in good faith
with common knowledge and skill.
In R vs. Mwagambo 8 EACA 28, the appellant inflicted two deep and serious
wounds upon the deceased who died as a result of sepsis from those wounds. The
wounds had been stitched by a medical dresser. The medical evidence was to the
effect that the wounds should have been drained instead of being stitched, but even if
they had been drained, there would still have been a risk of sepsis setting in. It was
held that what the dresser did wasn’t unreasonable in the circumstances and didn’t
relive the appellant of the responsibility for causing death. However, the person
inflicting the injury is not responsible for the death if the treatment was not employed
in good faith or was employed without common knowledge or skill.
In R vs. Jordan 1956 Criminal App cases 152, the Court quashed a convicted of
murder in a charge of causing death by stabbing after taking the exceptional step of
admitting fresh medical evidence which went to show that death was not caused by
the injury but negligent medical treatment. The stab wound pierced the intestine but
this was mainly healed at the time of death. The immediate cause of death was
pneumonia caused by the administration of antibiotic to which the deceased was
shown to be intolerant and intravenous introduction of wholly abnormal quantities of
liquid. Both treatments were stated to be palpably wrong by medical witnesses.
2. A person is responsible for the death of another if he inflicts bodily injury on
that other person which would not have caused death if the injured person had
submitted to proper surgical or medical treatment or had observed proper
precaution as to his mode of living.
In R vs. Holland 1841, the deceased refused to surrender the injured finger in time
for amputation which caused lockjaw that resulted into his death. The medical
evidence was that if the amputation had been done early, the deceased would
probably have survived. The Court directed the Jury that, if the accused had inflicted
the wound son the finger, he was responsible for the death.
3. A person is responsible for a homicide if by action or threatened violence, he
causes that other person to perform an act which causes the death of that other
person, such act being a means of avoiding such violence which in the
circumstances would appear natural to the person whose death is so caused.
In R vs. Pitts 1842, the deceased threw himself into a river to avoid acts of
intentional violence against himself by the accused. The deceased drowned and the
accused was held guilty of murder.
4. A person is responsible for a death if by any act or omission he hastens the
death of a person suffering from any disease or injury, which apart from such
acts or omission would have caused death.
In R vs. Enyaju 12 EACA 42, During a tribal dance, T willfully gave the deceased a
violent poke on the head with the sharper end of his heavy dancing stick piercing the
skull and causing the deceased’s brain to protrude. The deceased fell to the ground
and almost immediately E, beat him violently on the other side of the head fracturing
the skull. The trial judge specifically found that the deceased was alive at the time of
E’s blow. Each injury would inevitably have caused the deceased’s death. Both T &
E were convicted of murder.
The case of R vs. Okute 8 EACA 78, demonstrates the effect of successive but
separate beatings causing death. The deceased was first beaten up by four men and
made to dig up some stolen meat. Sometime later as the deceased, in a very weak

28
condition was being taken to the chief was assaulted by another man X. The
deceased died of shock resulting from the cumulative effect of his injuries. It was
held that the four men could not be responsible for causing the deceased’s death as
on the evidence, it was possible that injuries inflicted by them might not have caused
death but for the subsequent assault by X. There was no evidence of any common
intent between them and X but X was guilty of murder for he had with intent to cause
grievous harm assaulted one who was already in a very weak state. It was no defence
for X to say that the injuries that he inflicted upon the deceased would not have
caused death but for the prior assault. Generally, an assailant must take his victim as
he finds him.
5. A person is deemed to have caused death of another if his act or omission would
not have caused death unless it had been accompanied by an act or omission of
the person killed or of other persons. This principle also includes a rule that
where A, voluntarily walks into an obvious situation of danger created by an
unlawful act of B, B is not responsible for A’s death, since here, the principle of
violent non fit injuria applies (voluntary assumption of risk).
In R vs. Horsey 1862, the accused who had unlawfully set fire to a stockyard in
which the deceased was burnt to death was acquitted of murder because the jury
found that the deceased had entered the yard after it was set on fire.
HOWEVER,
in R vs. Katunzi 13 EACA154, the accused set fire to a hut made of millet stalks
with only one door with the intention to cause death or grievous harm to the
occupants Z, K and four helpless children were in the hut at the time. Z with K’s help
evacuated the children. Then Z under the mistaken belief that one of the children was
still in the hut re-entered it and sustained burns from which died the next day.
Accused was convicted of murder.

ATTEMPT TO COMMIT MURDER

In Deo Metsnga Vs Uganda 1996 Volume 6 KALR97 Kania J held that the
essential ingredients of offence of attempted murder are that the assailant intended to
maim or disfigure the complainant and that the intention was to be carried out with
the weapon and that the assailant started to execute the said intention. So in this case
there was a shooting at the car and the accused was guilty of attempted murder.
In Teopista Tusungire & Amor Vs Uganda HCCC 5/ 96, 1996 Volume 6 KALR
75 It was held that attempt to commit is an act done with intent to commit that crime,
and forming part of a series of acts which would constitute its actual commission if it
were not interrupted. Therefore, to support the charge of attempted murder the
prosecution must prove the full intent to murder, i.e. with malice aforethought which
intent to murder, while being prosecuted, is interrupted before the death results. In
the present case the complainant’s hands and legs were burnt by the appellant who
left her to go with the injuries. It cannot be said that the appellants had formed the
intention to kill the complainant but were interrupted in their effort to do so.
Therefore, the trial magistrate was right to find that offence had not been proved.
In order to convict of an attempt, it must be shown that the accused intended to
consummate the particular crime, or rather (since knowledge of the law is not
required) intended to procure the consequences that in law amounts to crime. The
requisite mens rea in attempt may be proved circumstantially by the evidence of what
the accused did. It may be that his acts are consonant only with the intention of
committing a crime, and if so they will supply evidence of mens rea. Alternatively,
the mens rea may be proved by a confession on the part of the accused, or other
direct statement of intention.

SEXUAL OFFENCES
Key among these offences includes Rape and defilement.
Morality is the belief or recognition that certain behaviors are either “good” or “bad”
and
Our morality plays a crucial role when formulating laws and policies.
The law of the Penal Code Act is designed to protect public morality. The focus on
the offence is on the enforcement of opinions on particular aspects of sexual
morality. Some examples of the Offences of morality include incest, bestiality,
abortion, prostitution, rape, defilement, indecent assault, adultery, elopement, bigamy
among others.

1.0 RAPE:
Under section 123 of the PCA, any person who has unlawful carnal knowledge of a
woman or girl without her consent or with her consent if the consent is obtained by
force, means of threat, intimidation of any kind or by fear of bodily harm or by
means of false representation as to the nature of the act or in case of a married
woman by impersonating her husband commits a felony termed rape and liable to
suffer death if convicted (S.124). In England, this offence is now found in the Sexual
Offence Act and in its present form codifies the law as laid out in DPP vs. Morgan
(1975) 1All E R 347.
Unreasonable belief in consent is not a defence to a charge of rape. In England, the
phrase “sexual intercourse” is used in place of the phrase “carnal knowledge”.

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Neither the phrase “carnal knowledge” as used in Uganda nor “sexual intercourse” as
used in England has been defined for the purposes of this offence but the Sexual
Offences Act provides some guidance as to the meaning of the phrase sexual
intercourse.
“Where on trial of any offence under this act, it is necessary to prove sexual
intercourse (whether natural or unnatural it shall not be necessary to prove the
completion of the penetrative intercourse by the emission of seed, but the intercourse
shall be deemed complete upon pron only”.

The common law rule is that a husband cannot commit rape on his wife, as
arising out of her marital obligations, she is deemed to consent to intercourse
with her husband so long as they are not separated by an order of Court or a
separation agreement.
In R vs. Clark (1949)2 All E. R 448, it was held that presentation of a petition for
divorce but before hearing is not enough. So carnal knowledge shall be unlawful
where there has been judicial separation or a decree nisi, or an injunction against
molestation, an undertaking to court not to molest or formal separation deed with a
non-cohabitation clause.
Though a husband has a right to sexual intercourse, he is not entitled to use force or
violence in order to exercise that right. If a he wounds her, he might be charged with
wounding, causing bodily harm or common assault. See R vs. Miller (1954)1Q B
282 and Shampil Singh (1962) A. C 188.
Carnal knowledge means sexual intercourse and to prove rape it is necessary to
prove penetration however slight by the male organ into the vagina. There need
be no emission of semen. The absence of consent is the crux of the matter. The
test is “was the act against her will?” See R vs. Camplin 1845, Mulira vs. R 20
EACA 223.

Accordingly, prosecution does not have to prove positive dissent but only prove
that she did not assent.
INGRIDIENTS OF RAPE
1. Lack of consent.
2. There must be sexual intercourse
3. There must be force

LACK OF CONSENT
In Fretcher case, accused had sex with a 13-year-old girl with little intellect and was
convicted for rape because Court held that her age and intellect did not enable her
give consent. It is rape where the accused has sexual intercourse with a woman by
impersonating the husband. It is also rape for the accused by fraud deceives a woman
to the nature of the transaction.
See R vs. Flattery (1877)2 Q B 410, where accused was convicted where the
woman submitted to intercourse with him under the impression that he was
performing a surgical operation. In R vs. Williams (1923) K B 340, a singing master
persuaded his pupil that sexual intercourse would improve her singing voice. It is
important that evidence in sex offences, including rape, be collaborated. Such
corroborated evidence may include medical examination concerning nature of semen
within the vagina, pubic hair found in genital area or inside, eye witness, confession
by the accused. See R vs. Kapanda Vol. 2 N R L R, the appellant admitted to a
mother and father that he had defiled their daughter aged 7 years and offered them
money, if they would drop the case. Appellant’s admission was held to be
corroboration of the girl’s evidence.

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2.0 DEFILEMENT (Section 129 of the Penal Code Act)
Defilement is any sexual intercourse with a child under the age of eighteen years old
whether or not the child consents. Defilement under the Act constitutes virginal
penetration of a girl child with a male organ and it covers other acts of a sexual
nature such as anal sex and oral sex. It is a crime under the Penal Code Act. Section
129(1) of the Penal Code Act further describes defilement, “Any person who
unlawfully has sexual intercourse with the girl under the age of eighteen years
commits an offence and is liable to suffer death.”
Defilement under the Act constitutes virginal penetration of a girl child with a male
organ and it covers other acts of a sexual nature such as anal sex and oral sex.
Further, defilement of a child under the age of 14 years is more serious than
defilement of a child who is 14 years and above. It is also noted that defilement of
children under 18 years of age would remain a strict liability offence.
The essence of the law on defilement is the need to protect young girls from early
sexual activity. Proof that the girl is under eighteen years is thus essential for a
conviction of defilement. There is no need to prove the exact age of the victim.
In Uganda V Lwasa Sempijja Cr No 381/96. It was held that in defilement, the
prosecution need not to prove the exact age of the victim, rather it must be proved
that the girl was at the time of intercourse under the age of eighteen years.
In Katima John V Uganda Cr APP NO. 23/ 1999. Katima was convicted of
defilement, the prosecution case was that the defilement occurred on 15th of
December 1992, in her evidence, the complainant/ victim stated that she was told by
her father that she was born in 1977 and was therefore 15 years at the time of the
assault. On the other hand, her mother testified that the girl was born in 1979(and
was therefore 13 years at the relevant time). The doctor who examined the victim
determined that she was 14 years. He stated in cross examination that he did not have
the machine to examine her age but used his experience. On appeal, it was argued
that there was no evidence to prove that the complainant was below the age of 18.
The Court of appeal held,
“That the prosecution had proved beyond reasonable doubt that the victim was under
18 years of age. The learned judge came to the right conclusion that the complainant
was 18 years. Even if the court believed that the complainant was born either in 1979
or 1977, she was defiled in 1995 and whatever date is taken she was definitely below
18 years. The learned trial judge observed the complainant while she was giving
evidence in court and formed his opinion about her age, which he was entitled to do.”
On a charge of defilement, proof of the age of the girl must be beyond reasonable
doubt. The parents may state the date of birth, or produce birth certificate if any was
extracted or a baptism card if it took place shortly after birth or by reference to local
events at the time of birth such as war, famine. Since 2007, however, the Penal Code
has been amended and introduced fundamental procedural and substantive changes
in the law of defilement. For example, a boy can also be defiled, so authorities which
emphasize sexual intercourse with a girl have been affected by this amendment.

2.1 INGREDIENTS OF DEFILEMENT

The essential ingredients for a successful prosecution of defilement include the
following;
1. Sexual act (penetration).
2. The victim must be below eighteen years of age.
3. The accused is a culprit.

The ingredients of defilement were further emphasized in the case below;

Kibale vs. Uganda (1999) 1EA 148, In order to prove the commission of the
offence of defilement, three facts, had to be established. Firstly, that there had been
penetration of the female sex organ by the male sex organ. Secondly, that the female
was below the age of 18 years, and thirdly, that it was a male person who had
engaged in the sexual intercourse
In Nfutumikiza vs. Uganda (1999) 1EA 220, it was held that the slightest
penetration sufficed to constitute the offence of defilement and it was not necessary
to prove rupture of victim’s hymen. In this case the medical evidence showing that
the complainant vulva was inflamed and that sperm was present in her vagina was
sufficient to prove the necessary penetration.

2.2` CONSENSUAL SEXUAL ACTS BETWEEN CHILDREN

Before the 2007 Penal Code amendment, where there was a consensual sexual
intercourse between a female and a male child, it was only the boy child who would
be penalized irrespective of age difference between the boy and a girl who engaged
in such an act. The law treated the boy as an offender and the girl as a victim.
Where consensual sex takes place between a female and a male adolescent, the
current law makes both partners equally offenders.
Where defilement is committed by a male child and a female child on each other
where such child is not below 12 years of age, each offender shall be dealt with as
required by part x of the Children Act.
Under the new amendment, a female adult who engages in a sexual act with a male
person under the age of 18 years would be guilty of defilement. Before the
amendment, penetrative sex of an adult female vagina with the penis of an underage
male constituted the lesser defence of indecent assault.

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2.3 DEFILEMENT OF IDIOTS OR IMBECILES.
Under Section 130 of the Penal Code Act, it is an offence for a man to have sexual
intercourse with a female idiot or imbecile even with her consent. It must however be
proved that the man knew the female to be an idiot or imbecile at the time of the
commission of the offence. Presumably, the object of this provision is to try to
prevent the procreation of children inheriting their mother’s mental embarsility but
by an anomaly, there is nothing to prevent a male idiot having voluntary sexual
intercourse with the same female.
Please Note That Lack of Knowledge of the Victim’s Age Is No Defence.
Before the 1990 amendment of the law, proof by the accused person that he
reasonably believed the girl to be above the prescribed age was a complete defence
to a charge of defilement, since the 1990 amendment, this is no longer a defence.
In the case of Tumuhairwe Vincent V Uganda Cr App NO 29 /97, the court of
appeal held inter alia that the fact that an accused did not know that the victim in a
defilement case was under 18 years of age is no defence.

3.0 INDECENT ASSAULT (Section 128 of the Penal Code Act)

Indecent assault is an offence of aggravated assault in some common law-based
jurisdictions.
It is characterized as sex crime and has significant overlap with offences referred to
as Sexual assault.
Any person who has indecent contact with another or taken indecent liberties with a
person without his/her consent is guilty of indecent assault. It is a sex crime.
According to Black’s Law Dictionary, indecent assault is the crime of attacking
someone in a way which involves touching or threatening them sexually, but not
forcing them to have sexual intercourse.
Indecent assault has sexual connotation which may desire directly from the area of
the body of a girl to which the assault is directed, or it may give rise to sexual
connotation in the carrying an assault and anus of both male and female and the
breast of the female are the relevant areas the purpose or motive of appellant in
behaving in that way is relevant. The very intentional doing of the indecent act is
sufficient to put the matter before the jury but if the assault alleged is one which
objectively does unequivocally offer.
Sexual connotation hem in order to be an indecent assault it must be accompanied by
some intention on the part of the assailant to obtain asexual gratification.
An indecent assault is an assault accompanied by circumstances of indecency, thus
where a man indecently invites a small girl to touch his person, there is no assault
and therefore, no indecent assault. If, however such invitation was accompanied by
force or threats of force there is indecent assault.
It is no defence that a girl under 18 years consented to the act of indecency
though it could be a defence where the victim is over 18 years.
Section 128(1) and (2) Provides that: -
1. Any person who unlawfully and indecently assaults any woman or girl
commits a felony and is liable to imprisonment for fourteen years, with or
without corporal punishment.
2. It shall be no defence to a charge for an indecent assault on a girl under the
age of eighteen years to prove that she consented to the act of indecency.
3. Any person who intending to insult the modesty of any woman or girl, utters
any word, makes any sound or gestures or exhibits any object, intending that
such word or sound shall be heard, or that such gesture or object shall be seen
by such woman or girl, or intrudes upon the privacy of such woman or girl,
commits a misdemeanor and is liable to imprisonment for one year.

3.1 INGREDIENTS OF INDECENT ASSAULT

The essential ingredients that must be proved are;
1. The act must be unlawful
2. Assaults any woman or girl
3. That the assault was without the consent of complainant.

NB. The slightest touch is sufficient to amount to an assault and does not to be
hostile or aggressive.
In Uganda Vs Ojengo (crim. session case No.009 of 2011) (2013) Prosecution has
a burden of proving all ingredients of the offence. If one unlawfully and indecently
assaults a boy under the age of eighteen years commits a felony and is liable to
imprisonment for fourteen years, with or without corporal punishment. See section
147 of the Penal Code Act.
In R V Tabassum (2000) three women had agreed to remove their bras to allow the
appellant to examine them because they understood that he was medically qualified
and was carrying out the procedure in order to put together a medical database on the
subject. The Court of Appeal took view that on the facts there was consent to the
nature of facts but not to their quality, since they were not for a medical purpose. The
appellants’ conviction for sexual assault was therefore upheld.

3.2 DEFENCES.
A defence should raise reasonable doubt.
Note: It is no defence that a girl under 18yrs consented to the act of indecency.
Though it could be a defence where the victim is over 18yrs. see 128(1) (2)

36
Note: Where a boy under 18 years is a victim, one is charged under Section 147 of
the Penal Code Act.
In Uganda V Venansio Bamutula [ 1979] HCB 4, the accused was charged with
indecent assault c/s 122(1) Penal Code. He pleaded guilty and this plea was entered
and the magistrate sentenced him to nine months ‘imprisonment without first
entering a conviction. He had met the complainant and her sister on the way. He put
her down and then took off his trousers. Her sister raised an alarm which was
answered by a person who met him still struggling with her. It was held that what the
accused did, did not amount to indecent assault. Indecent assault must be
accompanied with circumstances of indecency to a person assaulted. The mere fact
that the accused person had no trousers on, while he was straggling with the
complainant, did not without more constitute indecent assault. What he did amounted
at best to preliminary steps taken towards committing an indecent assault. Since this
was a border line case its doubt was to be resolved in favor of the accused.
In DPP V Rogiers (1943) 2 ALLER834, Lord Gordard stated, before you can find
a man guilty of an indecent assault, you have to find that he was guilty of an assault,
you have to find out that he was guilty of an assault, for an indecent assault is an
assault.
In R V Cott (1987) 1 ALLER140, the court held that the essential element of an
indecent assault was that the accused knew or was reckless about the existence of
circumstances which were indecent in the sense of contravening standards of decent
behavior in relation to sexual modesty or privacy. This means that in order for an
accused to be convicted of indecent assault, the prosecution must prove that an act
which is accompanied by utterances, suggesting of sexual intercourse.

4.0 INCEST (Section 149 of the Penal Code Act)

 Incest are sexual relations between people classified as being too closely
related to marry each other. Any person who has sexual intercourse with
another with whom to his or her knowledge any relationship as listed under
section 149 (1) PCA commits the offence of incest.
 It is a crime of having sexual intercourse with a parent, child, sibling or
grandchild.
 It is also a sexual activity between family members or close relatives.
 This typically includes sexual activities between people in consanguineous
relations (blood relations) and sentences those related affinity step family,
those related by adoption or marriage or members of the clan line age.

4.1 INGREDIENTS OF INCEST.

 Sexual intercourse with a person within the degree of consanguinity where
marriage is prohibited.
  Knowingly having sexual intercourse with persons without the following
degrees of consanguinity see S.149 (P.C.A).
NOTE: Consent is not a defence.
- It is immaterial that whether the intercourse was with or without the
consent of such female.
- The age of a victim is not considered as an element of the offence of
incest.
4.2 DEFENCES TO INCEST.
1. Lack of knowledge of the relationship.
2. Alibi
3. Total denial
4. Mistaken identity.

Prosecution must therefore prove sexual intercourse took place. The primary object
of the law of incest may be blood relations through conception of chain. It is no
defence where persons act in ignorance of their relationship. It is no defence that
intercourse took place with the consent of the other person. The references to brother
and sister include half rather and half-sister but not step siblings. In the case of step
siblings, no blood is shared. Section 150 of the PCA.
In the case of Barugahara V Uganda [ 1969] E.A 73, the appellant was convicted of
incest with his daughter under section 144 of the Penal Code Act. He had allowed
with a woman of 17 years before the alleged offence but they never married. The
woman left his home while pregnant when his daughter was 12 years old, she came
to live with him and eventually impregnated the daughter. It was held that the
offence of incest is committed even if the relationship is not traced. The evidence of
the female witness liable to be prosecuted for incest requires to be collaborated. This
holding is in line with the need for collaboration in sexual offences.
NOTE
The existence of lawful wed lock between parents in the case of half siblings is
irrelevant for purposes of the test of relationship i.e. it is irrelevant that H & J were
either lawful wedlock and later had a son S who later had sexual intercourse with Z,
the daughter of K& J after J and K lawfully wedded for one to be prosecuted for
incest, consent of the DPP must first be obtained. Refer Sec (5) of the PCA

5.0. PROSTITUTION (Section 138 of the PCA)

Black’s law Dictionary defines prostitution as the act of practice engaging in sexual
activities for money or its equivalent, that is to say commercialized sex. Under

38
Section 138 of the Penal Code Act, a prostitute is defined as a person who in public
or elsewhere regularly or habitually holds himself or herself out as available for
sexual intercourse’s or for other sexual verifications for monitoring or other material
gains.
Prostitution is the act of offering the body with promiscuous or indiscriminate sexual
intercourse. From the wording of the PCA, a prostitute may be male or female.
Section 139 0f the act creates the offence of prostitution. If anyone practicing or
engaging in prostitution constructed in accordance with section 138.
Also the business is surrounded by other criminal prohibitions e.g. under section 136
(1), those that knowingly live on the earnings of prostitution and that solicit if
immoral purposes under section 137, those that keep a house or rooms or any place
of any kind is prostitution.
This is the practice or occupation of engaging in sexual actively with someone in
exchange for payment either money, good services or some other benefit upon by
transacting parties.
Read Katuria Vs Republic [ 1969] EA 16 The appellant was a prostitute living on
her own earnings and was convicted on a charge of knowingly living on the earnings
of a prostitute contrary to section 154 of the Kenyan Penal Code. It was held under
inter alia that the section does not intend to make every prostitute living on her own
earnings guilty of an offence with in the
section. It focused on punishing people other than prostitutes who live on her
earnings of prostitution.

5.1 INGREDIENTS OF PROSTITUTION

1. There must be sexual intercourse.
2. There must be willingness.
3. There must be a consideration in return of the sexual act
4.
6.0 ELOPEMENT (Section 127 PCA)
This literally means to run away and not to come back to the point of origin. This is
an act of running away secretly with the intent to get married.
An act of a wife who voluntarily deserts her husband to co-habit with another man. To
abandon one’s husband and run with a lover. To run away secretly for the purpose of
getting married of often without parental consent.
Sec 127 (1) prohibits a man from eloping with a married woman or enticing such
action.
Sec 127 (2) prohibits a woman from eloping with a married man or enticing such
action.
Under Sec 127 (3), either man or woman that agrees so to a law with the other
person 9 being married to another) commits the offence. It is impossible to elope
with a woman who has left her husband.
 In Uganda versus olungu (1972) EA 136 High Court of Uganda
The woman had run away from her husband at least four years prior to the alleged
offence and it appears she has had permanently left the matrimonial home. So the
accused would not have caused the offence of elopement. Also the offence is only
once the person the accused is alleged to run away with married. The offence is
committed if a person takes a married person away from his or her spouse in order
to live in adultery.
She was convicted of elopement.
On Revision: -
Held: it was impossible to elope with a woman who has already left her husband.
In Uganda vs Solomon and Another [ 1971] EA 46 High Court of Uganda. The
first respondent (a man) was charged with eloping with a married woman not his
wife and the second respondent (a woman) was charged with eloping with a person
who was not her husband. The magistrate acquitted the respondent on the ground
that the acts constituting elopement are not defined in the Penal Code Act and that
therefore the offence is not defined within Article 15(8) of the Constitution.
Ingredients
The prosecution in an elopement case has to prove: -
1. That one or both of the parties was married and living with his/her
husband/wife.
2. That the accused knew the marital situation.
3. Knowledge of the other party is married.

In Uganda vs Damulira [ 1976] HCB 11High Court The two accused persons
were charged with elopement under section 121A (1) and
(3). The second accused a married woman had run away from her husband and after
10 months she was found and arrested in a house used by the first accused as a shop.
She denied having lived with the first accused as husband and wife. Held: in order to
prove elopement, it must be shown that in case of a married woman the man charged
had the necessary intention to make her abandon her husband and live with him as
husband and wife. He must therefore know that at the time he took her away she was
in fact married to another man and that the marriage has not been legally dissolved.
Uganda Versus Rukwandura [ 1973] EA 574 High Court of Uganda

40
The High Court held knowledge that the other party is married is essential of the
offence of elopement.
In Uganda vs Francis Ogema HC Cr. Revision 436 of 1970
The two accused, a man and a woman, were charged with elopement contrary to
Section 121A (1) and (2) of the Penal Code. They were both convicted. The charge
sheet had one statement of offence and two sets of particulars one relating to the man
and the other relating to the woman.
Held on revision:
1. There should have been two separate counts each with a statement of
offence and particulars of the offence. The particulars of the offence relating
to the man which alleged that Ogema ‘being a married man eloped with
Sophia not being your wife were defective. The particulars of the offence
under Section 121A (1) must state that the woman is married, otherwise no
offence will be revealed against the male accused.
2. When the accused denies an offence, the prosecution must adduce evidence
to prove every ingredient of the offence. In this case no evidence
whatsoever was led by the prosecution to show that the male accused was a
married man.
DEFENCES
1. Honest and genuine belief on reasonable grounds that the person with whom
he or she elopes is not married.
2. If the woman has left her husband.
In Uganda Versus Ojok and Another [ 1973] EA489 High Court
The woman was not living with her husband at the time of the alleged offence, having
left him for some time. The bride price had not been returned for her husband and she
had moved in with her uncle. On revision it was held that it was impossible to elope
with a woman who had already left her husband.
7.0 ADULTERY (Section 145 of the PCA)
Adultery is the voluntary sexual inter course between a married person who is not
their spouse.
It is extramarital sex that is considered objectionable on social, religious, moral or
legal grounds.
Please remember God’s Commandment which forbids adultery in the Bible.
Exodus 20:14 “You shall not commit adultery”

Under Section 154(1), any man who has: -

1. sexual intercourse with a married woman
2. such man is not her husband commits adultery

Essentially, the import of Section 154 of the PCA is that both man a married
woman not being married to each other found in the act of sexual intercourse can be
charged on the same charge sheet in different counts but on the same offence i.e.
adultery. Under Section 154(1), there is a provision for compensation to be paid to
the aggrieved party (presumably the husband of the adulteress) no such provisions
exist for compensating the wife of the adultery under section 154 (2)
Arguably, because of the difficulty in providing the act of intercourse, such persons
may be charged with elopement as it is easier to prove the act of running away
together.
Under Section 154(1) of the PCA, is it a defence for a male accused to state, he did
not know that the female ha had sexual intercourse with was married.

Refer to Uganda Versus Nicholas and others (1966) EA 345 & Uganda Versus
Said WaiguValensa (19770 HCB 296.

Is the form of marriage contracted by a female or adulterer relevant?

Read Alai versus Uganda (19510 E. A 596

PLEASE NOTE ADULTERY IS NO LONGER A LAW IN UGANDA

On 24/6/2007. The Uganda Constitutional Court is the case of
FIDA UGANDA AND OTHERS VERSUS ATTORNEY GENERAL. That
made adultery criminal for women but not men.
This law was scrapped from the Penal Code Act, in a Land mark ruling where the
Court unanimously said. Section 154 of the PCA which criminalized adultery was
unconstitutional because it treated men and women differently.

42
 The adultery law prescribed different penalties and remedies for men and women. It
prescribed that only married men could be aggrieved in case of adultery.
An aggrieved husband was compensated with Shs 600 which later went up to Shs
1200/=
But the aggrieved wife got nothing.
Also the wives, now do not have to cute different friends to seek Divorce previously,
wives had to prove cruelty and dissertation in addition to adultery to secure a divorce
while husbands only had to prove adultery.
Therefore, Adultery is no longer a criminal offence in Uganda having been scrapped
off the P.C.A by the Constitutional Court in the Land mark ruling of FIDA (U) and
others Versus Attorney General.
The Constitutional Law recommended for an Amendment of the Adultery Law in
the Penal Code Act.
8.0 BIGAMY (Section 153 of the Penal Code Act)
This is an act of entering into a marriage with one person while still legally married to
another.
It is a condition of having two wives or two husbands at the same time. According to
the Osborn’s Law Dictionary, 11th edition bigamy is an offence committed by any
person who, being validly married and while the marriage subsists marries any other
person during the life of the existing spouse or Is an offence of marring someone
while already married to another.
THE ELEMENTS OF BIGAMY INCLUDE;
1. having a husband or wife leaving (first marriage)
2. Goes through a ceremony of Marriage (the second ceremony). The first
marriage has been declared said by a court of complete jurisdiction.
3. The husband or wife of the first marriage at the time of the second
ceremony has been continually absent from such a person for seven years
and has not been heard of by such person as being alive with in that time.
The law of bigamy is designed to uphold the sanctity of monogamous marriage. By
its very nature, it cannot apply to polygamous or potentially polygamous marriages
e.g. Islamic and potentially customary marriages.
Prosecutions must prove, the accused went through a valid ceremony of marriage
with the first spouse e.g. By production of a marriage certificate or testimony of one
present during the ceremony. Prosecution must also prove that the accused, first
spouse was alive at the time of a second ceremony.
The second ceremony must be one known to as recognized by the law or capable of
producing a valid marriage e.g. by a licensed officiator or licensed venue.
The second marriage must be valid by reason of its taking place during the life of
the first spouse. This emphasizes that bigamy can only be committed by persons in
polygamous marriages.
 8.1 DEFENCES TO BIGAMY INCLUDE
1. The first marriage has been declared void by a court e.g.
2. The former marriage was between the prohibited degrees of relationships.
3. The first spouse has been completely absent from the accused at least seven
years at the time of the second ceremony and the accused has not heard from the
first spouse as being alive within that period.
In R Versus Tolson (1889)23 QBD 168, six and a half years after the accused’s
brother in law told her that her husband had drowned at sea, the accused married
another man, twelve months into her second marriage, her first purportedly dead
husband returned from America.
It was held, that she was not guilty of bigamy even though her husband had not
been absent for seven years at the time she remarried as she honestly and reasonably
believed him to be dead.
The other party to a bigamous marriage who knows of the subsistence of the
bigamous former marriage may be charged as a principle offender to bigamy.
Please note:
That the offence of bigamy does not apply to customary marriage in Uganda and
marriages under Islamic marriages because they are potentially polygamous.
Section 126 of the Penal Code Act provides that
a) Any person whether male or female with intent to marry or be married to or
have sexual intercourse with another person or cause that person to marry be
married or have sexual intercourse takes that person away or detains him or
her against his or her will or,
b) Unlawfully takes another person under the age of 18 years out of the custody
of ant of the parents or of any other person having lawful care or charge over
that person, commits an offence and is liable for imprisonment for seven
years.

INGRIDIENTS OF ABDUCTION
1. The act must be unlawful
2. The person must have been forcefully or persuasively done
3. The abductee must have been taken in the lawful custody of his or her parents
or one having lawful care or charge over that person.
9.1 DEFENCES TO ABDUCTION
1. If the parent consented to the move, abduction cannot arise.
2. If a child has been settled in his new environment for twelve months.

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3. There is a defence if the parent seeking the return of the child has not been
exercising so – called “rights of custody” before the removal / retention. This is
often when a parent has had no active, meaningful involvement in the child’s life
before the abduction.

10.0 KIDNAP
A person is guilty of a felony kidnap who: Conveys any person from the country (239
PCA)
Takes any person from lawful guardianship (section 240)
In the first instance, kidnapping means conveying any person beyond the boundaries
of the country without the consent of the person or of one legally authorized to
consent on behalf of that person.
In the second instance, kidnapping i.e. the taking or enticing of ant body under 14
years or any girl under sixteen years out of the keeping of the lawful guardian
without the guardian’s consent.
The consent of the convict in kidnap and abduction must be an intelligent consent,
the result of a deliberate and free act of mind fully cognizant of the course of
proceeding. R V Trolley 2 N.R .L.Ru.
Kidnapping is lawful guardianship is an offence is strict liability i.e. where the actus
reus of the offence has been prove, the accused is guilty without proof of mens rea or
guilty knowledge. Ignorance of the victims age is consequently no defense. On a
charge of kidnapping or detailing with intent to murder under section 243, the intent
must be strictly proved.
It has also been held at the confinement must be wrongful and secret
Uganda versus Kadiru Matovu and Anor (1983) HCB 27
NB Wrongful confinement is a misdemenour but wrongful confinement of an
abducted person is a felony attracting the same punishment as one at actually
kidnapped or abducted the victim.
Abduction and kidnap are often used interchangeably but there is a subtle difference
between the two.
Abduction involves the criminal leading away of someone from his or her home,
loved ones or other or other situation by persuasion or fraud or sometimes through
violence. It is a commonly means of disrupting a family relationship, such as a parent
taking a child away from the other parent in a divorce dispute.
Even if the child goes away willingly with that parent, it is still abduction because it
is unlawful interference between a child and the other parent.
Kidnap may have all the elements of abduction but in no case does the victim leave
willingly.
There is force used in kidnap to take away the person without his or her will. This
can be for purposes of seeking ransom or other financial gain, political motivations.
In abduction a stranger may lure a child away perhaps convincing the child to get
into a car, or go to a stranger’s home without the parents’ knowledge or consent.
In such a case the child went willingly at least initially.
Further, in abduction more often than not, the victim is familiar with the abduction.
They could be negation unlike kidnap.
Kidnapping is more about making profit or fulfilling some sort of objective.

10.1DEFENCES TO KIDNAPPING
Possible defences to kidnapping charge include but not limited to;
Duress, Necessity, Self defence, if one is a parent to a child, if not in the
contravention of a court order regarding to a child, you are acting with the consent of
the victim’s parents if the parent is a child, Total denial, Insanity, Consent,
Ignorance, Mistaken identity, Necessity.

10.2 KIDNAP WITH INTENT TO MURDER

Section 239 up to 243 of the Penal Code Act
Mukombe Moses Bulo v Uganda, Criminal Appeal No. 12 of 1995, the appellant
was convicted by the High Court of the offence of kidnapping Sandra Bulo, a baby
with intent to murder contrary to section 235(1) and ()2) of the penal code, and
sentenced to fourteen years’ imprisonment. He appealed against both the conviction
and sentence.
The fact as found by the trail judge were that the appellant was a cousin brother of
the complainant, Nakazi Harriet (PW3). The appellant had an affair with the
complainant as a result of which she gave birth to a baby girl named Sandra Bulo.
The appellant rented a house for the complainant at Namumera village where she
stayed with the child for one and a half years while the appellant was maintaining
them. After that period, the complainant returned to her home in Bugerere with the
child. In May 1992, the child fell sick and the complainant took her to the appellant’s
home to seek for money for her treatment. The appellant assaulted her and took away
the child Sandra from her. The complainant went and reported the matter to the R.C.I
Chairman who summoned the appellant but the latter refused to go. After the R.C.I
Chairman had gone to the appellant’s home to inquire about the matter, he gave the

46
complainant a letter referring her to Mukono Police Post. When the complainant
returned home she found her father sick at Kayunga Hospital and she attended to him
for five months. Later she sent her brother Moses Nkuki (PW6) to the appellant’s
home to collect the child to attend the last funeral rites of her grandfather. The
appellant refused to hand over the child saying that the complainant was a fool to
release the child to him.
After five months, the complainant went to the appellant’s home but did not find the
child there. In January 1993, the appellant told the complainant that he had taken the
child to Nsambya Sanyu Babies Home with the child’s photograph. She was told that
the child had never been taken there. She was referred to the Mukono Probation
Officer who summoned the appellant to his office. The appellant came and claimed
that he had given the child to the complainant, which the complainant denied. The
probation officer referred the matter to police. The appellant was arrested for failing
to five a satisfactory explanation as the whereabouts of the child Sandra. He was
charged and subsequently tried for the offence of kidnapping with intent to murder.
It was held: -
1. It is now well established that the offence of kidnapping with intent to murder
comprises of two key elements, namely the prohibited conduct of kidnapping
on taking away by force or fraud and the specific intent to cause the victim to
be murdered. [ See Ibrahim Bilal Vs. Uganda Criminal Appeal No.5 of 1983
(UCA)]
2. As regards the second element of the offence, namely the specific intent, it is
also well established that on a charge of kidnapping with intent to murder, it
is necessary for the prosecution to establish that at the time of kidnapping
there was a contemporaneous intent that the victim be murdered or be put in
danger of being murdered. [ See Godfrey Tinkamirwa& Another Vs. Cr. App.
No.5/88 (sc) (1988 – 1990) H.C.B.5]
3. That intention can be presumed if the victim has not been seen or heard of
within a period of six months or more. This presumption is provided for
under section 235 (2) of the penal code Act.
4. Once it is proved that the appellant forcefully took away the child from her
mother, and the child has not been seen or heard of for six months or more,
then the appellant is presumed to have had the contemporaneous intent the
child would be murdered or be put in danger of being murdered.
5. Section 235 (2) of the penal code casts a burden on the appellant to prove that
he did not have the contemporaneous intent that the child would be murdered
or be put in danger of being murdered. The appellant failed to rebut the
presumption. On the contrary there was sufficient evidence to prove that the
appellant had guilty knowledge of what happened to the child. This can be
evidenced by the fact the appellant lied that he had taken the child to
Nsambya Sanyu Babies Home, and when the child was not found there he
 claimed that the mother had taken away the child from his home after a few
months.

10.3 DEFINITION OF CONFINEMENT

Confinement is a strict form of imprisonment.
It is a state of being freed to prison or another place which one cannot leave.
In R V Mshangama nyal.r.sl
A 15-year-old was kidnapped and drugged to a brothel in which she was indecently
assaulted. The room in which she was locked was secured on the outside. There was
however a window at the girl could have escaped through but though was nailed and
did not try to use it. The judge held inter alia that through she may have tried to
escape out of the window, she was too frightened to attempt it. The entire restraint
upon her will constituted the imprisonment.
Uganda V Yonasani Balinda (1988- 90) HCB 3
Hajji Muhamed Sebikade versus Uganda (1986) HCB 6
Grade Kimeze & Anor versus Uganda (1983) HCB 9

11.0 ABORTION (Section 141of the PCA)

This is the deliberate termination of a human pregnancy most performed during the
first 28 weeks.
It is a spontaneous expulsion of a human fetus during the first 12 weeks of gestation.
This could be induced.
It is also the ending of a pregnancy by removing a fetus or embryo before it can
survive outside the uterus.
Under Article 22 (2) of the Constitution it’s provided that “No person has the right to
terminate the life of an unborn child except may be authorized by law”
DEFENCES OF ABORTION
1. If an act is performed to save a life of a pregnant woman
2. If the victim was raped
3. If the rape was under circumstances of incest.
4. Fetal impairment
5. If an act was performed to preserve the mental health of a woman

In Rex V Bourne, a physician was acquitted of the offence of performing an

abortion in the case of a woman who had been raped. The court ruled that the
abortion was lawful because it had been performed to prevent the woman from
becoming “a physical and mental wreck Thus setting a precedent for future

48
 abortion cases performed on the grounds of preserving the pregnant woman’s
physical and mental health.

11.1 UNNATURAL OFFENCES (SEC 145 OF THE PENAL CODE ACT)

Unnatural offences refer to having voluntary canal intercourse against the order of
nature with any man or woman or animals.
Under section 145 of the Penal Code Act
provides that: Any person who:
1. Has canal knowledge of any person against the order of nature.
2. Has canal knowledge of an animal
3. Permits a male person to have carnal Knowledge of him or her against
the order of nature, commits an offence and is liable to imprisonment
for life.

It is an offence for a person to have canal knowledge of another against the order of
nature i.e. man upon man or woman upon woman.
Section 145 of the Penal Code Act (b) criminalizes bestiality (having sexual
intercourse with an animal). It covers intercourse per annum or per vaginam by a
man or woman with an animal. Section 145 (a) and (c) make annual sex between
males as well as anal sex between a male and a female criminal. It thus prohibits
homosexuality. According to Smith and Hogan (1992:476)
It must be proved therefore;
1. That one had canal knowledge
2. Such was against the order of nature
3. It is also an offence for one to have canal knowledge of an animal, this is called
bestiality under section 145(b)
4. Further, any one that permits another to have canal knowledge of him or her
against the order in nature is guilty. Such a person is as guilty as the one under
section 145 (a) and can be charged in the like manner of co- adultery on the same
charge sheets under different accounts.
5. Penetration.
6. Mens Rea

Note: Penetration is sufficient to constitute the canal intercourse necessary to the

offence.
· Voluntarily”: This requires that the unnatural offence must be accompanied by
intention.
· “has carnal intercourse”: This requires that the act is committed (actusreus); mere
intention is not sufficient.
· “Against the order of nature”: This part is subject to various interpretations by the
court. The Court in Khanu vs Emperor laid down that, “the natural object of
sexual intercourse is that there should be the possibility of conception of human
beings.’ The court then defined sexual intercourse as “the temporary visitation
of one organism by a member of the other organism, for certain clearly defined
and limited objects”. Thus any sexual activity the natural object of which is not
conception is against the order of nature. This section was read by courts to
criminalize bestiality, child sexual abuse and consensual homosexual
intercourse. The section as interpreted by the courts from time to time initially
punished only anal sex as unnatural. Slowly cases such as Khanu vs Emperor
also held oral sex as unnatural. The present
interpretations have even covered penile penetration of other artificial orifices
like between the thighs or folded palms as unnatural.
Any person who attempts to commit any of the offences specified in section 145
of the penal code Act commits a felony and is liable to imprisonment for seven
years.

11.2 INDECENT PRACTICES (Section 148 of the Penal Code Act)

Any person who, whether in public or private, commits any act of gross indecency
with another person or procures another person to commit any act of gross indecency
with him or her or attempts to procure the commission of any such act by any person
with himself or herself or with another person, whether in public or private, commits
an offence and is liable to imprisonment for seven years. Read Section 148 of the
Penal Code Act.
This is the offending against generally accepted standards of propriety or good taste,
improper, vulgar, indecent jokes, indecent language, indecent behavior Not decent,
unbecoming or unseemly indecent haste.
Indecent exposure is regarded as a form of breach of the peace, shameless indecency
or lewd practice.
A crime of indecency exposure will often be proved where there has been a sexual
act whereby the accused derives sexual gratification but the offence is not confined
to such behavior

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1.1 TREASON
Treason is the offence of attempting by overt acts to over throw the Government or
the State which the offender owes allegiance or to kill or personally injure the
sovereign or sovereign’s family.
It is also the Crime of trying or helping to over throw the Government of the
criminal’s own country or cause its defeat.
According to the Black’s Law Dictionary, Treason is the offence of attempting to
over throw the Government of the State to which the offender owes allegiance or of
betraying the State into the hands of the foreign power.
Under, Section 23 PCA Any person who levies was against Uganda or unlawfully
attempts to or causes harm or death of the president or contrives any plot to over
throw the government as by law established commits an offence of treason and is
liable to suffer death.
Any person that aids or abets the commission of the above act or becomes an access
organization after the acts commits the offence as well.
The gist of treason in Uganda is the overt manifestation of an intention to overturn
the legally established government.
INGRIDIENTS OF THE OFFENCE OF TREASON
1. There must be a plot
2. There must be an intention to plot
3. There must be manifestation of such an intention by an utterance or an overt Act
as per Section 32 of the Penal Code Act.

These ingredients were discussed in case of Uganda Versus Hamis and Moses Ali
where it was stated that the case persons organized the plot to over throw the
Government by use of firearms. The overt Acts were meetings held in different cases
in Kampala.
Investing and inventing Uganda with an armed force coupled with an overt act or
utterance or publishing equally leads to liability under section 23(2) of the Penal
Code Act.
Similarly, any inducement of another to commit an act of mutiny or any treacherous
or mutinous act leads to liability under section 23(3) of the Penal Code Act.
It is a felony for a person knowing at another intends to commit treason to fail to
report the same to the authorities with all reasonable dispatch. The offence is known
as misprision of treason (Sec 25 of the PCA)
In Uganda V Okot & 12 others (Criminal Session Case No. 0477 of 2010) [ 2012]
UGHC 97 (30 MAY 2012)
MISPRISON OF TREASON
Misprison of treason is also an offence Under Sec 25 of the Penal Code Act. This
Section provides that it is an offence for a person knowing that someone intends to
commit treason to fail to report that person to the authorities as the earlier time and
such a person would be able to be imprisoned for life if convicted.
Special rules apply to the law of treason and imprisonment of treason that no person
can be held for these offences unless the prosecution commenced within five years
after the offence is committed. It should be noted this time does not apply to Section
23 (b) of the Penal Code Act.
In order to establish the offence of misprision of treason, it must be proved that the
accused knew that a named person had fixed intention to commit treason. A charge
of misprision of treason which does not name the person intending to commit treason
is affected.
Read: Mattaka versus Republic (1971) (A47)
Uganda versus okot and 12 others (sec Case 477 920b)
KINDRED ARE: aiding or inserting soldiers or policemen to muting or desert (sec
29& 30 of the PCA) and aiding prisons of war to escape (sec31)
It is also a felony to carry on assist or advise any war like undertaking for or against
a chief or any ban of persons except with lawful authority. (Sec 27 of the PCA).
N.B.: Prosecution of these offences must be commenced within five years after the
commission of the offence (sec 28 of the PCA)

2.0 TERRORISM (Sec 26 of the PCA)

Terrorism is in the broadest sense, the use of intentionally indiscriminate violence as
a means to create terror, fear, to achieve a financial, political, religious or ideological
aim. It is used in this regard primarily to refer to violence against peacetime targets
or in war against non- combatants.
The Anti- Terrorism Act 2002 refers to as the use of violence or threat of violence
with intent to promote or achieve religious economic and cultural or social ends in
unlawful manner that includes the use or threat to use violence to put the public in
fear or alarm.
Some of the Known terrorist groups include: - Al-shabab, the Alliance of Liberation,
Al- Qaeda, The Hizbul Islam and previously the Kony Rebel group.
Under Sec 6 of the Anti- Terrorism Act, a person commits an act of terrorism who
for the purposes of influencing the government or intimidating the public and it’s a
political social economic or religious aim indiscriminately without due regard to the
safety of others or property does all or any of the ten acts listed, these include: -
1. Manufacture

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2. Delivery
3. Placement
4. Detonation of an explosive or lethal device which intent to cause death or injury
or destruction.
5. Kidnapping, murder or attack on persons in public or private institutions or on
diplomatic agents or other internationally protected persons.
6. Provisions and collection of funds with the knowledge at these funds may be
used to carry out terrorist activities.
7. Cease or high jack of an air craft or public transport vessel or high jacking of a
person or persons for ransom.
8. Interference with or destruction of electric systems
9. Unlawful dealing in and possession of fire arms, explosives, bombs or
ammunition
10. International development or production or use of a biological weapon. One is
equally liable if he aids abets terrorism and is liable to suffer the same maximum
punishment of death (Sec 7 ATA)

Similarly, if one establishes or runs or supports any institution that promotes

terrorism many ways e.g. by publishing or determining news or materials to that
effect or training and mobilizing peers and funds to promote terrorism, that person is
liable under section 8
NB: Under Section 2, a person shall not be prosecuted for any offence under the
ATA minus the DPP’S Consent.
Read: - Uganda versus Hassan Agadya&12 Others
And Uganda Versus Ssekabira and 10 others High Court Criminal Case No. 0085 of
2010.

3.0 SEDITION (Section 40 of the Penal Code Act)

Sedition is an overt conduct such as speech and organization that tends toward the
insurrection against the established order. Sedition often includes subversion of a
constitution and incitement of discontention or resistance to lawful authority.
Sedition may include any commotion though not aimed at direct and open violence
against the laws. Seditious words in writing are seditious libel. A Seditionist is one
who engages in or promotes the interest of Sedition.

A person is guilty of the offence of sedition who;

1. Does or attempts to do or makes any preparations to do or conspires with any
person to do any act with a sedition intention.
2. Attars any sedition words
3. Prints or publishes or sells or offers for sale or distributes or produces any
sedition publications
 4. Imports any seditious publication unless he/she has no reason to prove the
truth of which shall lie on him or her at it is not seditious sec 40 PCA

Under section 3a, a section intention is,

a) To bring into hatred or contempt or exits disaffection
against the government as by law established
b) To excite the people of the country to attempt to procure the alteration otherwise
than by lawful means of any other matter in the country as by law established.
c) To bring into hatred or contempt or to excite disaffection against the
administration of justice in the country.
d) To subvert or promote the subversion of the government of the administration
of the district

PLEASE NOTE THE EXCEPTION SEC 39(2)

Causation without lawful excuse of seditious publication is an offence under section
40(2) Absence of knowledge of sedition content in publication or immediately
reporting such material to authorities as soon as one become aware of the content as
seditious is a defence under section 40(4)
Andrew Mwenda and Anor V A.G consolidated cost petitions 12(2005) & 3 (2006)
Uganda Versus PC John Balaba The accused person was charged with a convicted
o attempt of court sec 101(1) (a) of PCA. He was fined Shs 501/= which he paid. It
was said the accused had kept sitting when the court arose.
“any person who, with in the premises in which my judicial proceedings are being
had or taken, or win a precincts of the same shows disrespect, in speech manner two
or with reference to such proceeding, or any person before when since proceeding is
being heard or taken is guilty of a misconduct and is liable to imprisonment of 3
months”.
Held: - remaining seated while the court arises does not amount to showing disrespect
to court of the presiding magistrate which in the meaning of the section.

1.1 PERJURY (Section 94 of the Penal Code Act)

54
According to Osborn’s law dictionary, perjury is defined as the making of a false
oath by a witness or interpreter in a judicial proceeding of a statement material in that
proceeding, which he knows to be false or which he does not believe to be true.
This is offence of willfully telling an untruth or making a misrepresentation under
the oath in other words;
Ø It’s lying under oath
Ø Violation of an oath
Ø Giving false evidence
Ø Testimony
Ø False swearing
Ø Making false statements
It is intentional act of swearing a false oath or falsifying an affirmation to tell the
truth, whether spoken or in writing, concerning matters material to an official
proceeding
False swearing refers to knowingly and intentionally giving a false statement under
oath, searing corruptly, or willfully and knowingly deposing false in a sworn
statement concerning some fact before an office authorised to administer an oath.
Although the term false swearing and perjury are often used interchangeably, in the
strict legal sense there is a definite difference between them. The main difference is
that the false oath in perjury must be made in a judicial proceeding, whereas in false
swearing need not be such a proceeding. While perjury can be based only on an oath
required by law, in false swearing the oath may be in a voluntary statement or
affidavit, and it is not necessary that the purpose of the oath was to influence or
mislead anyone. In addition, although perjury requires that the false statement be
material, false swearing does not.
Section 94 of the Penal Code Act provides for the Offence of Perjury.
It is also important to note that a court interpreter can also be charged for the offence
of perjury as provided under section 96 of the Penal Code Act.
The punishment for perjury as provided for under section 97 is 7 years’
imprisonment.
According to section 95 of the Penal Code Act, provides for contradictory statements
which may lead to the offence of perjury. Where a witness in any judicial
proceedings, other than a person accused of an offence to which the proceedings
related, makes a statement on oath or affirmation of some fact relevant in the
proceedings contradicting in a material particular a previous statement made by the
witness or oath or affirmation before a court during the same or any other judicial
proceedings, the witness, if the court is satisfied that either of the statements made
was made with intent to deceive, commits an offence and is liable on conviction to a
fine not exceeding ten thousand shillings or to imprisonment for a term not
exceeding twelve months or to both such fine and imprisonment.
Therefore, an interpreter who makes a false statement in due course of interpretation
in any proceedings in court and knowingly knows it to be untrue commits perjury.
This is provided for under section 96 of the Penal Code Act; Any person who,
lawfully sworn as an interpreter in a judicial proceeding, willfully makes a statement
material in the proceedings which he or she knows to be false, or does not believe to
be true, commits perjury. False swearing amounts to perjury and according to section
100, any person who falsely or makes a false affirmation or declaration before any
person authorized to administer an oath or take a declaration upon a matter of public
concern under such circumstances that the false swearing or declaration, if
committed in a judicial proceeding, would have amounted to perjury commits a
misdemeanor.
Section 97 of the Penal Code provides for the punishment of perjury and
It states that “Any person who commits perjury or suborns perjury is liable to
imprisonment for seven years.” The defence one can put up or perjury is compulsion.
In this case the person’s life was threatened to either be killed or be caused an injury.
The threat may not be at that time but it may lead them to live in fear and hence they
commit perjury. The threat may not be at that time but it may lead them to live in
fear and hence they commit perjury
In Huddson and Taylor (1971) QB 202 Hudson aged 17 and Taylor aged 19 were
the principal prosecution witnesses at the trial of a man called Jimmy Wright. He had
been charged with malice wounding both Hudson and Taylor had been in the pub
where the wounding was alleged to have occurred and gave statement to the police.
At trial however, the girls failed to identify Wright and as a result he was acquitted.
In due course, the girls were charged with perjury. Hudson claimed that another man
who had a reputation of violence had threatened her that if she told on Wright in
court she would be cut p. She passed on this threat to Taylor and the result was they
were too frightened to identify Wright especially when they arrived in court and saw
the man in the public gallery. The trial judge withdrew the defence of duress from
the jury because the threat could not be immediately be put into effect when they
were testifying in the court room their convictions were quashed.
Read R versus Rawebhi 13KLR 74
Esaunamanda v Uganda
The trial judge in criminal session case no. 55 of 1991The trial Judge alleged that the
witness / appellant had stated in his examination in chief that he was 37 years old and
in cross examination he denied that he had told court that he was aged 37 years.
Rather said he was 33 years old. The trial judge there by found him guilty of perjury
and sentenced him to 6 months and one day’s imprisonment. The convict appealed

56
against the conviction on grounds that the trial judge erred in law to convict the
appellant summarily without trial.
Held: The conviction of the appellant was illegal as it was contrary to his
constitutional rights art 15(20) (h) to be informed of his offence and to
permit him prepare his defence.
1. The conviction would therefore be set aside. Secondly, the charge of perjury
formed a distinct charge from the material trial: - the conviction was entitled to be
tried by an independent tribunal. This had not been the case.
2. For the accused to be convicted of perjury the discrepancy in the appellant’s
evidence must be material to the case or at it affected the credibility of the appellant
in the instant case the trial judge did not show the discrepancy in the accused;
evidence was material to the case.
The elements constituting judicial perjury are: -
1. The testimony given in a cause
2. Falsity of such testimony in a material particular
3. Willfulness of such falsity or criminal intent

The first element is clear in the law since it is required that evidence is given during
a judicial proceeding before a court of justice made according to law which includes
any type of justice made according to law which includes any type of statement
which has evidential value regarding the fact of the case.
The second element relates to the objective element of the offence that is it must
relate to false evidence under oath which has been administered according to law by
a competent authority. As held by various legal jurists including manzini, this
evidence must relate to the affirmation of the false, the negation of the truth or
reticence.
The last two elements are the most important in order to lead to a conviction since
they deal with nature of the testimony and the intention of the witness. Therefore,
relating to the third element the falsity needs to refer to the fact which is material to
the outcome of the proceedings.
Proof required for a perjury conviction: the general rule appears to be that to convict
a person of perjury, positive and direct evidence is necessary; circumstantial
evidence standing alone is never sufficient. The reason for this rule is that it is
considered unsafe to convict for perjury where it is simply one man’s oath against
another. It is necessary that there be two witnesses to testify to the falsity.
In R V Atkinson, the Court of Appeal for Eastern African said;” In our opinion the
requirements of the section (evidence of perjury are satisfied if one witnesses swears
to the falsity of the statement and there is, in addition, other evidence which
corroborates that witness: as it was put by the court of Criminal Appeal in the case of
Trelfall (10 C.A.R 112) ‘there must be one witness and something more’.
In Confait v R [ 1958] E.A. 289. (C.A) before the trial of a man charged with rape,
a witness, C, had volunteered a statement to a sergeant of police, who recorded the
statement and read it over to C, who then signed it. At the rape trial the prosecution
obtained leave to treat C as a hostile witness. Under cross examination C denied
having made the statement. At C’s own trial for perjury, the police sergeant was a
competent witness to prove the statement whereupon the statement itself became
evidence and was sufficient to corroborate the sergeant’s evidence as to the falsity of
C’s testimony at the rape trial. Therefore, the evidence of perjury requires more than
one witness to prove guilty of the accused person.

2.0 CONTEMPT OF COURT

Black’s Law Dictionary defines contempt of Court as a crime committed by a person
who does any act in willful continuation of its authority or dignity or tending to
impend or frustrates administration of justice or by one who being under the courts
authority as a party to proceeding therein, willfully disobeys its lawful orders or fails
to comply.
This is the offence of being disobedient to or discourteous towards a Court of law
and its officers in the form of behavior that opposes or defies the authority justice
and dignity of the Court.
It is an act of being disrespectful accompanied by a feeling of intense dislike, or it is
a manner that is generally disrespectful and contemptuous.

In Uganda v VovaniBagheni
The accused was charged in three counts of concept of court case.
101 of the penal code trespass case 286 (a) of penal code and threatening violence
case 76(a) penal code respectively. He pleaded guilty to all three counts and was
convicted accordingly.
A senior state attorney writing on behalf of the DPP through that the particulars of
offence in court I did not disclose the offence charged. The particulars were stated as
under,
VovaniBagheni on 21st October 1977 at Mugete Village Gumg, Kyarumba, Bukunjo
county, Rwenzori District showed disrespect to the court by using force and
attempting to take away his child from Yontani when he led army soldiers to the
home of the said Yonatani to take to take the child by force so that V. Bagenyi can
avoid to pay Shs. 785/= as ordered by court in civil suit no.147 of 1974.
Held: although the particulars of the offence in count were sufficient to disclose the
offence charged for a person to be convicted under that section there must have been

58
a proximity between the unit or decision of court and the time of retaking or attempt
to retake the child.
In the instant case there was no proximity and there is no offence was disclosed by
the charge sheet.
Uganda versus Eusani Oketcho & 5 Others
The 6 accused were convicted on 23rd June 1977 by a Magistrate grade 11 of
contempt of court case 101(1) (b) of the penal code act.
Each accused was fined Shs. 4,000 or imprisonment if one month in default of
payment. The lower court records did not show whether the fines were paid or
whether the accused person were criminalized and was length to have done The
particulars of the offence alleged that the accused persons with in the premises of
Grade Two courts before which a judicial proceeding was being had or taken showed
disruption to the said proceeding and to the magistrate by abstinently refusing to be
sworn.
The six accused were defendants in a land dispute, civil suit no. m1197/7v before the
same magistrate. The accused declined to be sworn and to satisfy in their defence on
the ground that their advocate was not then present in court. The Magistrate held that
the defence advocate had persistently failed to appear on numerous other occasions
when the suit was filed for hearing and that he would proceed in the advocate’s
advice. He, however went on to hold that their refusal to be sworn when called upon
to do so in the breath of the law and they should be treated under section 101 (1) (b).
When the file was sent to the Director of public prosecutions in his views. Held: -
The Magistrate misunderstood the purpose of section 101(1) (b) that section is
intended to deal with retaliciment, witnesses, particularly in criminal cases.
In a criminal case an accused person has a constitutional right to remain silent or
given unsworn testimony. In a civil adjournment in refused, a failure or refusal to
defend may be properly taken as an admission of the plaintiff’s claim since it is not
then being challenged or disputed. All the magistrate needed to do next was to
consider whether the plaintiff had made out a case in support of his claim or a part of
it & then give judgment accordingly.
Mulley versus R. (1957) EA 138
The Hon. Justice lyon, Chief Justice of the Sychelles, received through the post an
envelope containing two sheets of paper on which were typed carbon copies of
doggered versus set out as three poems containing scurrinious attacks on the judge in
his capacity as Chief Justice. The appellant was subsequently charged with inter alia
contempt of court and although acquitted on other charges was convicted and
sentenced to two months’ imprisonment which he served since his adviser considered
that an appeal was not competent under sec 301(1) of the Seychelles criminal
procedure code in respect of a sentence of less than six months. Subsequently, an
appeal was lodged and the appellant presented his case in writing. The court of
appeal however decided to assign counsel to consider the appeal and a
supplementary memorandum was filled limited to the main issue. Contempt was
none. Although verses were not signed, counsel conceded that they had been written
by the appellant, that they were in the worst state possible grossly, rebellious and
would have contained contempt had they been published to a third party but he
submitted that where the writing complained of is only communicated to the judge of
whom it is written, there is no publication and accordingly the writing could not be
held to be calculated to bring the judge into contempt or to lower its authority.
Held: In a prosecution of contempt of court it is necessary to show that something
has been done in published which is calculated to lower the reputation in
authority of the court in the eyes of the public and in order to constitute a
contempt by libeling a judge it is not sufficient to communicate the libel to
him and to him only.

CONTEMPT TAKES TWO FORMS THAT’S CRIMINAL CONTEMPT AND

CIVIL CONTEMPT.

Criminal contempt occurs when the contemnor interferes with the ability of the
court to function properly, for example, by yelling at the judge, assault in the court
room, interruption of the court proceedings and others also known as direct
contempt. Direct contempt of court occurs in the presence of court during a court
proceeding, for example indirect contempt of court occurs outside the presence of
court.
Civil Contempt of court occurs when the contemnor willfully disobeys a Court order.
This is also called indirect contempt because it occurs outside the Judges immediate
realm and evidence must be presented to the Judge to prove the contempt. This can
be fined, jailed or both and it’s intended to coerce the contemnor into obeying the
court not to punish. Typically, the aggrieved party, such as a parent who has not
received court ordered child support payments, may fail an action for Civil
Contempt.
Civil Contempt often occurs indirectly for example when a party is ordered to
turnover financial records within thirty days but refuses to do so. Indirect contempt is
some time called consequential contempt.
In the case of Therium (UK) holdings Ltd Vs Mr. Guy Brooke and 2 others
[ 2016] Ewhc 2477(COMM), is one of the recent judgment in England and the high
Court. This case has made the common law position in Contempt of Court Orders
Clear.

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BURDEN AND STANDARD OF PROOF OF CONTEMPT OF COURT
The burden of proof in contempt of court cases is always on the applicant and the
standard is beyond reasonable doubt. Contempt of court in common law is criminal
offense. This is father more explained in our constitution which is recognized as a
crime under Article 28 (3) (a) is to the effect that be presumed to be innocent until
that person has pleaded guilty.
In para 14(1) of the Therium case (supra), it was considered that contempt cases, the
object the penalty is to punish conduct in defiance of the Court’s order as well as
serving a coercive function by holding out the threat of future punishment as a means
of securing courts orders.
In Para 14(2) the grounds for consideration are:
1. Whether committal to prison is necessary
2. What is the shortest time necessary for such imprisonment?
3. Whether a sentence of imprisonment can be suspended
4. That the maximum sentence which can be imposed on any occasion is two years’
imprisonment.
5. Whether there is a continuing breach the Court should consider improving a long
sentence possibly evens a maximum of two years to encourage future cooperation
by the contemnors.

In case of a continuing breach the court may see fit to indicate;

What portion of the sentence should be served in any events for punishment for
passed breaches?
What potion of a sentence the court might consider remitting in the events of
prompt and full compliance thereafter?
For contempt of court proceedings, have written application which sound evidence
follow principals stated in the case. The director of Public Prosecution has elusive
power to conduct criminal trials under Article 120 of the Constitution. So, does it
make common law contempt of Court Principles unconstitutional, if Contempt of
Court proceedings is bought by a litigant or initiated by the Court.
There is no Civil Contempt of Court in common law it is only criminal in nature and
all powers of procedure are inherent resolved in the Court. In addition, men’s rea is
needed to prove this offence, and still at common law, only courts of record have
power to punish for contempt of Court. Once Contempt of Court is committed, it is
removed and separated from any Civil and Criminal proceedings.
DEFENCES
Section 9 of the Kenyan Contempt Act states that in proceedings for contempt of
Court, it shall be a defense if it proved to the satisfaction that the conduct in issue.
a) As a fair comment on the general working of the court made in good faith, in
the public interest and in temperate language.
 b) As fair comment on the merits of a discretion of a court made in good faith,
and intemperate language.
c) Is a publication of a fair and substantially accurate report of any judicial
proceedings;
d) Is a publication of any matter amounting to contempt of court by reason of its
being published during judicial proceedings by a person who had no
reasonable grounds to believe that such judicial proceedings were pending at
the time of the publication of the matter.
e) Pertains to distribution containing any matter amounting to contempt of Court
by a person by a person who had no reasonable grounds to believe that the
publication contained or was likely to contain any such matter.
f) Is a true declaration made in good faith and intemperate language for
initiation of action or in course of disciplinary proceedings against a Judge or
judicial officer;
g) Is a plea of truth taken up as defence in any contempt of Court on an Appeal
or revision or application for transfer of a case or by a court in judicial
proceedings against a judge or judicial officer?
h) Is a relevant observation made in judicial capacity by a superior Court on an
Appeal or revision or application for transfer of a case or by a Court in
judicial proceedings against a Judge or judicial officer.
i) Is a remark made in an administrative capacity by an authority in the course
of official business, including a remark connected with disciplinary injury or
in an inspection note a character rule confidential report;
j) Pertains to any other matter exempted from constituting a commission of an
offence of Contempt of Court under any other written law

Under Section 107 of the penal code Act CAP 120 narrates offences relating to
judicial proceedings.
1) Any person who:
a) Within the premises in which any judicial proceedings are being had or taken
or within precincts of the same shows disrespect in speech or manner to or
with reference to such proceedings or any person before whom such
proceeding is being had or taken
b) Having been called upon to give evidence in a judicial proceeding, fails to
attend or having attended, refuses to be sworn or to make an affirmation or
having been sworn on or affirmed, refuses without lawful excuse to answer a
question or to produce a document, or remains in the room in which such

62
 proceedings is being had or taken, after the witnesses have been ordered to
leave such a room.
c) Causes an obstruction or disturbance during a judicial proceeding as well
explained in the case of R vs Parman and Guptas Advocates, the presiding
officer of court was conducting in session of trial of 2000.
In addition to the above in the case of State Vs Zhuhai and Others when the
contemnor a person or entity who is guilty of contempt before a judicial or legislative
body came inside the court and shouted Saale (an abusive term) Indian words, you
have caused to be fixed the entire money pertaining to my file. In the case of Kiran
Vs Subhash Chandra. Where shall I get my fee from? Court interpretation the
presiding officer intervened and said that the contemnor is uttering un parliamentary
and abusive language where upon the contemnor further said you judge I will tear
you apart and see you outside. The foresaid Act of the contemnor was in the presence
of litigants and advocates and thus lowered down courts authority and amounts to
contempt of Court.
d) While the judicial proceeding is pending, makes use of any speech or writing
misrepresenting such proceedings or capable of prejudicing any person in
fever of or against my parties to such proceeding or calculated to lower the
authority of any person before whom such proceedings is being had or taken.
e) Publishes a report of evidence take in any judicial proceeding which has been
directed to be held in private.
f) Attempts wrongfully to interfere with or influence a witness in judicial
proceeding either before or after he or she has given evidence in connection
with such evidence.
g) Dismisses a servant because he or she has given evidence on behalf of a
certain party to a judicial proceeding.
h) Wrongfully retakes the possession of land from any person who has recently
obtained possession by write of Court.
i) Commits any other act of intentional disrespect to any judicial proceeding or
to any person before whom such proceeding is being had or taken.
2) When any offence against sub section (1) (a) (b) (c) (d) or (i) is committed in
view of the Court, the Court may cause the offender to be detained in custody,
and time before the rising of the court on the same day may take cognizance of
the offence and sentence the offender to a fine not exceeding one thousand
shillings or in default of payment to imprisonment for a period not exceeding one
month.
3) The provisions of this section shall be deemed to be in addition to and not in the
derogation of the power of the high Court to punish for contempt of court.
Contempt of Court proceedings are not to protect judges personally from criticism
but to protect the public by processing in authority of the Court and the
administration of justice from under undue attack. This is further explained more in
the case of R V Mullery [ 1957] EA 138.
In R Vs Saidi Ibrahim (1960) EA 1058, the applicant had appealed against
conviction on the offence of contempt of court arguing that the offended magistrate
was at the same time the trial Magistrate, and therefore could not be fair. The East
African Court of Appeal Trial Judge, Sir Ralph windham then ruled: the only other
point argued in this application for revision is that the case against the applicant, of
contempt of court ought to have been heard by another Magistrate, and not by same
Magistrate who had recorded the reconciliation… including the applicants
undertaking the breach of which constituted the contempt of court.
In LameckKibacho Vs Republic (1979) LRT n 19, a police officer who had been
charged of reading a newspaper in Court and therefore convicted of contempt of
court without being properly charged appealed the conviction. Supreme Court Judge
Jonathan, J ruled thus; it was improper for the trial Court to summarily convict the
accused of contempt of court without drawing up a charge and asking the accused
why he should not be convicted on the charge.

4. CONSPIRANCY TO DEFEAT JUSTICE (Section 120 of the Penal

Code Act)
This is the act of perverting the ends of justice. A person commits an offence if:
1. A person conspires with another person to obstruct, prevent, pervert or to defeat
the course of justice in relation to judicial power.
2. It involves someone preventing justice from being served on themselves or on
someone else.
3. The course of justice involves the exercise by a court or competent judicial
authority, of its jurisdiction to enforce, adjust or declare the rights and liabilities
of the parties to proceedings.
4. Perversion of course justice therefore occurs, when the conduct of an accused
impairs, obstructs, adversely interferes or prevents the court from administering
justice Meisser VR 1995 CLR.

What amounts to course justice?

Police investigations of an actual or suspected offence are not part of the course of
justice because the police do not administer Justice. R v Rogerson (1992)172 CLR.
The offences of perverting and attempting to pervert the course of justice existed to
protect the process and procedures of the sovereign courts and through this protect
the administration of justice.

64
The course of justice begins when the jurisdiction of a court or competent judicial
body has been involved RV S Rogerson (supra). In criminal proceedings, it was said
the course of justice commences with the laying of information against or arrest of an
accused person.

INGRIDIENTS OF CONSPIRACY TO DEFEAT JUSTICE

1. The accused participated in the conduct to pervert the course of justice.
2. The accused had an intention to pervert the course of justice
3. That the defendant did the conduct in the indictment
4. That the conduct alleged in the indictment had the tendency to pervert the course
of justice i.e. to turn aside from its proper course.
5. That the defendant intended to pervert the course of justice by his action.

N.B. The prosecution does not have to prove that the course of justice was perverted
or would have been perverted. It is sufficient that the prosecution established that
there was real risk that injustice might occur.
For attempt offences, conduct objectively tends to pervert the course of justice. This
will be ratified E.G. when conduct has the objective capacity to result in one
listed above.
In the case of L b Aydin (2005) the alleged threat and bribes were made to a police
officer who was part of a controlled operation. Therefore, there was no actual risk of
the officer being induced to act or the threats or bribes. The defended was convicted
for attempting to pervert eh course of justice because in the ordinary course bribing
or threatening a police officer who does pose real risk to interfere the course of
justice.

ATTEMPT TO PERVERT THE COURSE OF JUSTICE

Frustration of a police investigation, before judicial proceedings have been instituted
to amount to the actus reas of attempting to pervert the course of justice. This is
because frustrating police investigations in the circumstances of the case could have
a tendency to pervert the course of justice by hindering the ability of the police to
involve court’s jurisdiction or ascertain the truth of facts presented to court. The
course of justice ends when the rights and liabilities of the parties are finally
determined and declared by the court or other competent judicial body. R V
Rogerson.
WAYS OF A PERSON CAN INFLUENCE THE COURSE OF JUSTICE
1. ·Hiding of police files.
2. ·Removing Court documents from the file.
3. ·Conspiracy to intimidate or assault witnesses
4. ·Hiding exhibits
5. ·Erosion of the integrity of the court or competent judicial authority.
6. ·Hindering access to the court or competent judicial authority.
7. ·Denying the court or competent judicial authority knowledge of the
circumstances and facts of the case.
8. ·Impending the force exercise of the jurisdiction and power of the court including
power to execute its decisions. R. V. Rogerson.
9. ·Tempering with evidences
10. ·Fraud
11. ·Manipulating a witness and perjury

ATTEMPT TO PERVERT THE COURSE OF JUSTICE

Perverting the course of justice is an offence committed when a person prevents
justice from being served or him or her on another party. In England and Wales, it is
a common law offence carrying a main sentence of life imprisonment.
Haggins vs The Queen
Haggins was driving a car with bejawn and three other passengers (one co-accused)
when it was stopped by the police.
Haggins gave police a false name (name of friend of his brother). Vehicles were
searched and 205g cannabis was found in the boot. The cannabis had been stolen
by Haggins and bejawn with the intent of selling it in queen’s land when they
arrived there however, the co-offender stated cannabis was his and gave the police
name. Haggins instructed to drive a car to police station and others were taken in
police car to the station.
In attempting to pervert the course of justice, a person may misdirect the direction of
justice to influence the outcome of a case.
Intimidation is when a person threatens another with violence physical or financial
harm or makes threats regarding a third party. This would include threats made
towards the family or friends of a case witness. Such threats are made with the
ambition of stopping a witness from proving evidence in court or from reporting the
crime at all.

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Destroying evidence or fabricating it refers to any evidence that is related to a case.
If the evidence is lost, damaged or tampered with, it makes it difficult or even
impossible to prove that person is guilty or innocent of a crime. To dispose of the
evidence, a person would take such actions as burning, throwing it away, burying or
hiding it. As this tampering of evidence would seriously hinder the outcome of the
case, it is considered to be perverting the course of justice.
DEFENCES
1. If the accused person was acting under Duress
2. Honest and reasonable belief that the act did not amount to conspiracy to defeat
justice.