Brigadier Smith Opon Acak,Ahmed Ogeny v Uganda [1993] UGSC 10

Supreme Court · 1993 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal to the Supreme Court against the High Court's refusal to accept the appellants' pleas in bar (pardon) in treason proceedings

Decision

Appeal dismissed; High Court orders upheld; the appellants must return to the High Court to stand trial for treason.

The full judgment

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Holding

The Supreme Court dismissed the appeal. It held that a general pardon broadcast under a peace campaign does not have the legal effect of a pardon and cannot found a plea in bar; an accused relying on a pardon under s.59 of the Trial on Indictment Decree bears the burden of proving it on the balance of probabilities. A pardon under Article 73 ordinarily requires a written instrument indicating the type of pardon granted. The appellants' evidence — chiefly hearsay reports of ministerial statements, the maker of which was never called — was insubstantial and proved no instrument of pardon. The trial judge's refusal to let the accused testify was an irregularity, but it was cured by their affidavits filed on appeal. The High Court orders were upheld.

Facts

The two appellants, former senior army officers under earlier governments, returned from exile in 1987 after a general pardon and amnesty were broadcast in connection with a peace campaign. Each was arrested in November 1987 and detained as a prisoner of war. They alleged that the Minister of State for Internal Affairs and other officers told them they had been pardoned by presidential order but were held for security reasons, and that their release was later cancelled by the NRA High Command, which earmarked them as rebel leaders for prosecution. In January 1990 they were charged with treason. At their trial they raised pleas in bar asserting a presidential pardon. The High Command's release list, issued for prisoners of war, did not include their names, and no signed instrument of pardon was produced. A New Vision newspaper report and ministerial witnesses indicated the pardon was a general one covering those who surrendered, that no names or specific orders of pardon were made, and that the appellants were expressly excluded from release for security reasons.

Issues

Whether a general pardon announced by proclamation under a peace campaign has the legal effect of a pardon capable of founding a plea in bar to criminal proceedings.
Whether the appellants proved, on the balance of probabilities, that the President had granted them a pardon so as to bar their prosecution for treason.
Whether a presidential pardon under Article 73 of the Constitution must be signified by a written instrument, or whether it may be established by circumstantial or hearsay evidence.
Whether the trial judge erred in refusing to allow the accused persons themselves to give evidence in support of their pleas, and whether any such irregularity occasioned a miscarriage of justice.

Orders

Appeal dismissed.
The orders of the High Court are upheld.
The appellants are to return to the High Court to stand their trials, which should take place as soon as possible.

Key headnotes

Constitutional Law — Prerogative of Mercy — General Pardon by Proclamation Distinguished from a Pardon

A general pardon announced by proclamation under a peace campaign does not have the legal effect of a pardon and cannot be pleaded in bar of criminal proceedings; following such a proclamation a court may at most defer execution to allow the prisoner time to apply for a pardon.

Constitutional Law — Prerogative of Mercy — Form of a Presidential Pardon under Article 73

A pardon granted under Article 73 of the Constitution must ordinarily be signified by a written instrument indicating the type of pardon granted, so that the authority implementing it knows whether it is free or conditional; only in exceptional circumstances, such as destruction of records, may secondary or circumstantial evidence prove the instrument.

Criminal Procedure — Plea in Bar — Burden of Proof of Pardon

An accused who pleads a pardon under section 59 of the Trial on Indictment Decree bears the burden of establishing the plea on the balance of probabilities; failing that, he cannot bar further proceedings and must proceed to trial, raising his claims in defence.

Evidence — Hearsay — Reported Statements Offered to Prove a Pardon

Reported statements by a minister that an accused had been pardoned are insubstantial hearsay where the minister is not called to give evidence, and cannot establish that an order of pardon was in fact made.

Criminal Procedure — Plea in Bar — Right of the Accused to Give Evidence

Where an accused person puts forward a plea in bar, he should be allowed to make a statement or give evidence personally rather than rely on counsel; a refusal to permit this is an irregularity, but it may be cured where the accused sets out his full case in affidavits on appeal.

Legislation cited (9)

Constitution of Uganda Article 15(1)
Constitution of Uganda Article 15(6)
Trial on Indictment Decree s.59(1)
Constitution of Uganda Article 73
Constitution of Uganda Article 74
Constitution of Uganda Article 75
Constitution of Uganda Article 79(1)
Amnesty Statute 1987
Amnesty Statute 1989

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.