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- It was held that the offence was not well defined before the accused persons were made to plead to it preparatory to their conviction and sentence. Accordingly court quashed the convictions of the appellants and set aside the sentences.
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MBARARA
HCT-05-CR-CN-0013-2004
(Arising From Cr. Case No. 131-2004 CRB 346-2004 of Kisoro)
1. MAHORO PASCAZIA)
2. ACILLO CHRISTINE)
3. DUDU AFISA)
4. NAMUGERWA ROSE)……………………………………………………... APPELLANTS
VS
UGANDA………………………………………………………………………. PROSECUTOR
BEFORE: THE HON. MR. JUSTICE P. K. MUGAMBA
JUDGMENT
This is an appeal against conviction and the subsequent sentence by the Grade I Magistrate Kisoro on 29th June 2004. All the four appellants had pleaded guilty to a charge of being in possession of immature fish, contrary to sections 29 (b) and 33 (1) of the Fish Act. After their plea to the facts were read to them which they proceeded to admit before they were each sentenced to 8 months’ imprisonment.
In so far as is relevant the charge read:
‘STATEMENT OF OFFENCE
POSSESSION OF IMMATURE FISH C/SS 27(b) and 33 (1) OF FISH ACT, CAP 197.
PARTICULARS OF OFFENCE
MAHORO PASKASIA, ACIRO CHRISTINE, DUDDU AFISA AND NAMUGERWA ROSE ON THE 23RD JUNE 2004 AT KISORO POLICE STATION IN THE KISORO DISTRICT WERE FOUND IN POSSESSION OF IMMATURE FISH.’
Section 7 of the Fish Act states that’ immature’ in relation to a species of fish means that it is of a length less than such as may from time to time be notified by the Chief Fisheries Officer by statutory instrument, either generally or in respect of any specified area.
It does not appear from the charge what species of fish the appellants were found in possession of. In the statement of facts the fish was said to be of tilapia. Under the Act not only the species of fish must be stated but also the specifications of what comprise immature fish in the species. In that case, to my mind, there is need to show what the length of the species found in possession of the accused was before an offence can properly be said to have been committed. In the instant case this was awfully missing. In a case where an accused was charged with being in possession of articles used in witchcraft this court held that the articles used should have been set out and that the omission to do so left the charge vague. See Uganda vs Fenekasi Oyuko, Criminal Revision No. 407 of 1972 reported in [1973] 1 ULR 35. Article 28 (3) (b) of the Constitution itself provides that every person who is charged with a criminal offence shall be informed immediately, in a language that the person understands of the nature of the offence. Clause (12) of the Article provides that except for contempt of court no person shall be convicted of a criminal offence unless the offence is defined. Respectfully I do not find that in the instant case the offence was well defined before the accused persons were made to plead to it preparatory to their conviction and sentence.
This appeal succeeds.
In the result I quash the convictions of the appellants and set aside the sentences.
P. K. Mugamba
Judge
14th September 2004
Appellants in court
Mr. Magoba for appellants
Ms Ampeire State Attorney
Ms Tushemereirwe court clerk/interpreter
Court:
Judgment read in open court.
P. K. Mugamba
Judge