THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
CASE NO: HCT-03-CR-SC-0720 OF 1999
UGANDA ::::::::::::::::::::::::::::::::::::::::: PROSECUTOR
MAIDO ROBERT & 2 OTHERS::::::::::::::::::: ACCUSED
BEFORE: HON. MR. JUSTICE YOROKAMU BAMWINE
J U D G M E N T:-
The accused person, Maido Robert, is indicted for murder contrary to sections 183 and 184 of the Penal Code Act. It is alleged in the indictment that the accused and others still at large on 9/5/97 at Butangala village, Jinja District murdered Waziko Siragi. He pleaded not guilty to the indictment. The accused had been facing the charge jointly with one Kaggwa Isaac Musumba. At the end of the prosecution case, court found that Musumba had no case to answer. The evidence had not at all connected him with the commission of the offence. He was accordingly acquitted and discharged. This judgment is therefore in respect of Maido Robert alone.
The material facts of the case as established by the prosecution are that Waziko Siragi was a village mate of the accused person. The villagers suspected Waziko of causing unnecessary deaths in the village due to the practice of witchcraft. They therefore hatched a plan to kill the said Waziko and on 9/5/97 attacked him in his home where they proceeded to murder him. The accused, Maido was arrested, charged and cautioned whereby he admitted the offence.
On the other hand, the case for defence is not a total denial of participation in the killing of the deceased. According to the accused, he was compelled by fellow residents of Butangala village to accompany them to the home of Waziko. On reaching there, his colleague committed the offence. He did not know the circumstances under which Waziko met his death because for him he was assigned guard duties at a nearby house which also belonged to the deceased.
It is trite law that the burden of proving the accused’s guilt is upon the prosecution. The said burden never shifts to the accused. He is therefore not required to prove his innocence.
In case of murder like this, the prosecution is required to prove beyond reasonable doubt, inter alia, that a human being was killed, that the killing was unlawful, that the killing was with malice aforethought and that accused directly or indirectly participated in that killing.
To prove the first element of this offence, prosecution relied on the evidence of PW1 George William Ziraba, PW2 Lovisa Nakisuyi, PW4 Dr Mugabi and PW5 David Wagabaza who testified that they saw the dead body of Waziko Siragi. The fact of death is not disputed by the defence. I find that the prosecution has proved beyond reasonable doubt that a human being by the name of Waziko Siragi is dead and that he died on or about the 9th day of May 1997.
As far as the second ingredient of this offence is concerned, i.e. whether or not the death was unlawfully caused, it is the law that death of a human being is presumed to have been unlawfully caused unless it was accidental or it was authorized by law. See Gusambizi s/o Wesonga Vs R.  15 EACA 65. In the instant case, the evidence indicates that the deceased did not meet his death accidentally or in a manner authorized by law. He was attacked and killed in the said attack. It must therefore have been caused unlawfully and I so find.
The next question to consider is whether or not the accused is responsible for the unlawful death of the deceased. It is the prosecution case that he took part in the killing of Waziko. The accused, in his unsworn statement, says he was compelled to go to the scene of crime and that even then, while there, he did not actively participate in the killing. He says he was threatened with death if he abandoned his colleagues there. The evidence raises two issues:-
2- Common intention.
I will start with defence of compulsion. This is covered under section 16 of the Penal Code Act. It provides:-
“16. A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do not act by threats on the part of the offender or offenders instantly to kill him or do him grievious bodily harm if he refuses; but threats of future injury do not excuse any