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Professor Isaac Newton Ojok v Uganda (Criminal Appeal 33 of 91)

Supreme Court · [1993] UGSC 32 · 1993 Conviction Quashed — Retrial Ordered ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal to the Supreme Court against conviction for treason and sentence of death imposed by the High Court
Decision
Conviction quashed and sentence set aside; matter remitted for retrial before another Judge, appellant remanded in custody pending retrial

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Holding

The Supreme Court rejected the defence of pardon: the statutory instrument relied on was false and the High Command had directed that the appellant be prosecuted, so no amnesty or pardon under Article 73 was ever granted. On bias, the Court held that both the "real likelihood" and "reasonable suspicion" tests apply in Uganda and are complementary: the real likelihood test identifies an interest (pecuniary, proprietary or kinship), and the reasonable suspicion test then verifies confidence in impartiality. Although the kinship connection alone was insufficient, the trial judge had misdirected the assessors and made premature findings of fact before evaluating the defence, creating an appearance of bias. The appeal was allowed, the conviction quashed and a retrial ordered.

Facts

The appellant, Professor Ojok, was convicted of treason and sentenced to death for levying war against Uganda between August 1986 and October 1987, having allegedly joined Alice Lakwena's Holy Spirit Movement before falling into the custody of the authorities. He raised a defence of pardon, asserting he had been granted amnesty and release. The evidence showed a purported Statutory Instrument No.1 of 1989 said to amnesty detainees, but its schedule of names was never produced, the genuine Statutory Instrument No.1 of 1989 concerned electrical cables, and High Command correspondence directed that rebel leaders including the appellant be prosecuted for treason. The appellant also alleged bias: the trial judge was a sister of the First Deputy Prime Minister and National Political Commissar of the NRM, against whose government the appellant was charged with fighting. The judge's handling of the recusal application was not recorded, and her judgment contained findings of fact made before the defence was evaluated.

Issues

  1. Whether the appellant had received a valid pardon or amnesty barring his prosecution for treason.
  2. Whether the trial judge was biased, or there was a real likelihood or reasonable suspicion of bias, by reason of her kinship to a leading figure of the National Resistance Movement.
  3. What test or tests for judicial bias should be applied in Uganda.
  4. Whether the trial judge misdirected the assessors and made premature findings of fact before evaluating the defence.

Orders

  • Appeal allowed to the extent of ordering a retrial.
  • Conviction quashed.
  • Sentence set aside.
  • Appellant ordered to be re-tried by another Judge as soon as possible.
  • Appellant remanded in custody until the retrial takes place.

Key headnotes

Judicial Bias — Applicable Test in Uganda — Combined Real Likelihood and Reasonable Suspicion Tests
In Uganda both the "real likelihood of bias" test and the "reasonable suspicion of bias" test apply and are complementary: the real likelihood test is first used to ascertain whether the judicial officer laboured under an interest, whether pecuniary, proprietary or of kindred, and the reasonable suspicion test is then employed to verify whether the position satisfies reasonable, right-minded people that the court was impartial.
Judicial Bias — Kinship — Indirect Connection Insufficient
An interest of kinship amounting to a real likelihood of bias exists where a judicial officer is closely related to a party who is before the court, but a merely indirect connection between the judge and a relative who is not himself a party, and whose interest is not directly engaged in the proceedings, is not sufficient to establish such an interest.
Conduct of Trial — Premature Findings of Fact — Misdirection of Assessors
A trial judge who makes findings of fact on the prosecution evidence before evaluating the defence and the evidence as a whole, and who misdirects the assessors on a material issue, commits misdirections which may make it impossible for an appellate court to determine what conclusions would have been reached absent the error, warranting a retrial.
Reception of English Common Law — Judicature Act — Persuasive Authority
Under the Judicature Act the common law applied as part of the law of Uganda is the English common law as it stood, subject to modification by the circumstances of Uganda and its people; subsequent English decisions are not binding on Ugandan courts but provide a wide experience and are of persuasive character.
Defence of Pardon — Forged Instrument — No Bar to Prosecution
A defence of pardon under Article 73 of the Constitution cannot succeed where the instrument relied upon is false and the competent authority in fact directed that the accused be prosecuted; a forged or unauthenticated statutory instrument confers no amnesty or pardon and is no bar to prosecution.
Allegation of Bias — Procedure — Application Must Be Made Formally and Recorded
An application that a judge disqualify herself for bias must be made formally and in open court and entered upon the record, and must be determined judicially; it is improper for such an application to be made informally in chambers and left unrecorded, and a judge should not consult a senior judge in a manner that allows the senior judge to take part in the decision.

Legislation cited (14)

  • Constitution of Uganda Article 15
  • Constitution of Uganda Article 15(1)
  • Constitution of Uganda Article 73
  • Trial on Indictments Decree 1971 s.37
  • Trial on Indictments Decree 1971 s.56
  • Trial on Indictments Decree 1971 s.59(1)(b)
  • Judicature Act 1962 s.2(2)(b)
  • Judicature Act 1967 (Cap. 11) s.3(2)(b)
  • Judicature Act 1967 (Cap. 11) s.3(3)
  • Judicature Act 1967 (Cap. 11) s.3(5)
  • Amnesty Statute No.6 of 1987 s.2(a)
  • Amnesty Statute No.6 of 1987 s.3(1)
  • Amnesty Statute No.6 of 1987 s.3(2)
  • Supreme Court Rules Rule 30

Cases cited (11)

  • R v Camborne Justices, Ex parte Pearce [1955] 2 All E.R. 850
  • R v Rand (1866) L.R. 1 QB 230
  • R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256
  • Tumaine v R (1972) E.A. 441
  • Metropolitan Properties Co v Lannon [1969] 1 QB 577; [1968] 3 All E.R. 304
  • Libyan Arab Uganda Bank for Foreign Trade and Development v Adam Vassiliadis (Civil Appeal No. 9 of 1985)
  • Frome United Breweries Co v Bath Justices [1926] A.C. 586
  • R v Essex Justices, Ex parte Perkins [1927] 2 KB 488
  • Cottle v Cottle [1939] 2 All E.R. 535
  • R v Altrincham Justices, Ex parte Pennington [1975] 2 All E.R. 78
  • R v Eastern Traffic Area Licensing Authority [1974] RTR 480
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.