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- The High Court considered the constitutional right of an accused to take plea and the court held that trying the accused without taking plea, was a violation of the accused’s right to a fair trial which is guaranteed by the Constitution of the republic of Uganda. Consequently, the court ordered the trial of the accused a nullity and ordered that a fresh trial be conducted.
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
HOLDEN AT SOROTI
CRIMINAL REVISION NO. 0001/2013
(Arising from SOR-00-CR-CO-616/2011
CRB NO. 561/2011
UGANDA.……………………………………….……………………APPLICANT
VERSUS
ENGONU COLONELIUS ………….………………………………..RESPONDENT
BEFORE: THE HON. MR. JUSTICE STEPHEN MUSOTA
REVISION ORDER
This file has been placed before me for a possible revision order.
The simple background is that Engonu Colonelius was charged before the Magistrate Grade I Soroti with two counts; one of Burglary c/s 295 of the Penal Code Act and the other of theft c/s 254 (1) of the Penal Code Act. However, the accused person did not take plea although his trial went on and the case was reserved for judgment. While writing judgment, it came to the notice of the learned trial Magistrate that infact the accused person did not take plea which according to her amounted to a miscarriage of justice. The file was therefore referred to the High Court for revision.
I am in agreement with the learned trial Magistrate, who took over a partly heard case, that the omission to take the plea of an accused person which is preceded by the explanation of the offence in a language the accused understands was a violation of the accused’s right to a fair trial which is guaranteed by the Constitution of the Republic of Uganda.
Under Article 28 (3) thereof every accused person who is charged with a criminal offence shall
be presumed to be innocent until proved guilty or until that person pleads guilty;
be informed immediately in a language that person understands, of the nature of the offence.
This enables the accused person respond to the accusation and may inform court that, after all, he was previously tried of the same offence and was either acquitted or convicted or that he was pardoned of the offence before.
If a plea is not taken, there is no way court will come to know any of these mitigating circumstances. (See also Articles 28 (9), (10) and (12) of the Constitution and S.124(5) MCA).
This position is echoed under S. 124 of the Magistrates Courts Act (MCA) where an accused is called upon to plead. S. 124 (1) is drafted in mandatory terms that:
“(1) The substance of the charge shall be stated to the accused person by the court and the accused person shall be asked whether he or she admits or denies the truth of the charge.”
The mandate to proceed with a full trial is derived from S. 124 (3) when the accused does not admit the truth of the charge and a plea of not guilty is recorded.
I will therefore find that by trying the accused in this case without taking his plea, it violated the accused’s right to a fair trial and caused him a miscarriage of justice. Consequently, I will order the trial of the accused a nullity and order that a fresh trial be conducted in accordance with the law and criminal procedure.
Stephen Musota
JUDGE
26.03.2013