THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF
(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA KANYEIHAMBA,
CRIMINAL APPEAL NO. 55 OF 2000
(Appeal from the judgment of the Court of Appeal (Manyindo. D.C.J.. Kato
and Engwau. J.J.A) dated 28th day of November,2000 in (Criminal
Appeal No. 98 of
REASONS FOR THE DECISION OF THE COURT:
20th March. 2002. we heard and dismissed this appeal and announced
that we would give our reasons on a date to be notified to the parties.
The appellant together with another, Wilberforce Bahati. were
indicted, and tried in the High Court at Masindi for murder contrary
183 and 184 of the Penal Code Act. They were convicted and sentenced to death.
They appealed to the Court of Appeal
against their convictions and sentences
which allowed the appeal of Wilberforce Bahati but dismissed that of the
this appeal by the appellant.
The facts of the case may
be summarised as follows: On 6/4/1996, at around 5.00 p.m., Vasta Kyampaire
(PW3) met the deceased. Shortly
afterwards she also met the appellant and
Wilberforce Bahati, following the deceased at about a distance of some fifty
This was on a path going to a nearby well. The following day, the
body of the deceased was found with cut wounds and covered with
at a distance of some fifty metres from the path where Vasta Kyampaire had met
the appellant and Bahati the previous
day. The incident was reported to the
authorities. The accused were subsequently arrested by the Police and charged
Each of them made a statement in which he admitted having taken
part in the murder, but at their trial they retracted the statements
the defence of alibi. The trial judge rejected their defence and convicted them.
As already noted, in the Court of Appeal,
Bahati was released after his appeal
was allowed by the learned Justices of Appeal. Consequently, the appeal in this
court was by
the appellant alone.
The grounds of appeal in this court
were framed as follows:-
learned Justices of Appeal erred in law in relying on the evidence of PW3 and
PW4 to convict the
learned Justices of Appeal erred in law and in finding that the offence charged
was proved beyond reasonable
learned Justices of Appeal erred in law fact in finding that the confessions of
the accused persons were sufficiently
learned Justices of Appeal erred in law and in fact in finding that the
circumstantial evidence against
appellant was incapable of explanation upon any other hypothesis than that
it was inconsistent with his innocence.
5- The learned Justices of Appeal erred in law and fact in finding
that the conviction of the appellant could stand without the confession
second accused person in the trial.
Mr. Atuhaire, counsel for the appellant, argued ground 1, 4 and 5 separately
while combining grounds 2 and 3. In effect, counsel's
submissions are to the
effect that because the learned Justices of Appeal did not reevaluate the
evidence properly, they came to
the wrong conclusion in confirming the
conviction of the appellant by the learned trial judge.
that there were some inconsistencies in the evidence of both Vasta Kyampaire,
PW3, and Scholar Nyamirere, PW4, which
should have been resolved in favour of
the appellant and yet neither the trial judge nor the Justices of Appeal did so.
further submitted that as the appellant's confession was
repudiated, it was essential that having admitted that confession, it should
have been corroborated and, neither the High Court nor the Court of Appeal
properly considered the requirements of corroboration.
It was also contended by
counsel for the appellant that without the appellant's confession, the
prosecution case depended entirely
on circumstantial evidence which evidence was
too weak to prove the case against him beyond reasonable doubt.
view, the record of proceedings and the submissions of counsel for the appellant
were of such a nature that we were satisfied
that the Court of Appeal properly
evaluated the evidence. Therefore at the conclusion of submissions by
appellants' counsel, we decided
that we did not need to hear counsel for the
In our view, the Court of Appeal adequately dealt with the grounds of appeal
raised by counsel for the appellant.
As already stated, there were two
appellants in the Court of Appeal. The learned Justices of Appeal, having
the evidence implicating the first appellant, Wilberforce
"On his part, Mr. Wamasebu, Principal State Attorney, for the
respondent, argued that there was a formidable case against the appellants.
According to him, the circumstantial evidence against the appellants was such
that it excluded the possibility of the deceased having
been killed by people
other than the appellants. In his view, the appellants' statements had been
sufficiently corroborated by the
evidence of PW3 and PW4. He later on, however,
conceded that Bahati's statement does not amount to a confession and it could
support a conviction against him. We agree with Mr. Wamasebu's submission
that the statement of the first appellant does not amount
to a confession within
the meaning of section 24 of the Evidence Act In order for a statement to amount
to a confession it must implicate
the maker in the commission of the crime he is
alleged to have committed "
The learned Justices of Appeal proceeded to reevaluate the
evidence against both appellants and having been satisfied that it would
unsafe to uphold the conviction of Bahati, they allowed his appeal because the
confession of the appellant in that appeal did
not fall within the provisions of
section 28 of the Evidence Act which provides that:
"28. When more persons than one are being tried jointly for the same
offence, and a confession made by one of such persons affecting
himself and some
other of such person is proved, the court may take into consideration such
confession as against the person who
However, the learned Justices of Appeal
accepted the submission of counsel for the respondent that the charge and
of Bahati did not amount to a confession.
The learned Justices of Appeal next considered the confession of Julius
Mubangizi, the present appellant, and agreed with the findings
of the learned
trial judge that Mubangizi's statement was a clear confession. The statement had
been admitted by consent. Both the
trial court and the Court of Appeal were
satisfied that the appellant's confession that he had killed the deceased in a
also described accurately in his confession was fully corroborated by
the evidence of Dr. Kakaire.
Dr. Kakaire had examined the body of the
deceased and found the injuries which had been inflicted on it to be consistent
the second appellant had stated in his confession. They also found
that the evidence of Kyampaire Vasta, corroborated part of the
confession in so far as it confirmed that the deceased was carrying something
wrapped in a banana leaf. We reiterate
the principle established in
Anyangu and Others v. Republic (1968) EACA 239 at p. 240 where the Court
of Appeal for East Africa noted that:
"A statement is not a confession unless it is sufficient by itself
to justify the conviction of the person making it, of the offence
with which he
We were satisfied that the trial court and the
Court of Appeal properly evaluated and reevaluated the evidence against the
who, in our opinion, was properly convicted. It was for these reasons
that we dismissed the appeal.
Before we take leave of this case, we would
like to draw attention of trial judges and magistrates to our view in respect of
confessions of accused persons without objection which we expressed in
the case of Mawanda Edward v. Uganda Cr. Appeal No. 4 of 1999 (S.C),
(unreported), that because of the provisions of Article 28 (3) of the
Constitution by which an accused person is presumed to be innocent until proved
guilty, an advocate should not concede the guilt of the accused. It should be
the accused in person.
Similarly, where a plea of not guilty has been
entered, it should be the accused and not his counsel to raise no objection to
in evidence of such a confession as was done in this case.
DATED AT MENGO THIS 12th DAY OF
A.H. O ODER
JUSTICE OF THE SUPREME
J. W.N. TSEKOOKO
JUSTICE OF THE SUPREME
JUSTICE OF THE SUPREME
JUSTICE OF THE SUPREME
JUSTICE OF THE