Hofni Topacho Ongiertho and 2 Others v Uganda (Criminal Appeal 1 of 93)

Supreme Court · [1994] UGSC 20 · 1994 Conviction Quashed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal to the Supreme Court against conviction and sentence for treason on a High Court decision

Decision

Convictions of all three appellants quashed and death sentences set aside; appellants ordered released from custody forthwith unless otherwise lawfully held.

The full judgment

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Holding

Three appellants were convicted of treason or aiding and abetting treason and sentenced to death. The Supreme Court allowed their appeals. The convictions of the second and third appellants rested entirely on two military intelligence witnesses who were self-confessed liars, whose evidence was materially contradictory and whose reports had been written months later and backdated; they could not support a conviction. The first appellant, charged with treason under section 25(1)(c), was wrongly convicted of aiding and abetting by resort to the general provision in section 21(1)(c) when the Penal Code creates a specific offence of aiding and abetting treason in section 25(1)(d). The convictions were quashed and the death sentences set aside.

Facts

Military Intelligence received information that a group was plotting to overthrow the Government by force of arms and was recruiting soldiers. Two officers, PW1 and PW2, were detailed to infiltrate the group as spies and attended a series of meetings between August 1990, alleged to have been held at the International Television Sales premises (where the first appellant was Assistant Sales Manager), at Spring Garden Village in Kyambogo, and at other locations. The first appellant was alleged to have facilitated the meetings by allowing his office to be used, arranging a venue and providing transport, although he attended only once and said nothing. The second and third appellants were alleged to have attended and discussed plans to overthrow the Government. Nine overt acts were charged. The appellants denied the charges. At trial, PW1 and PW2 gave contradictory evidence, their reports conflicted with their oral testimony, and they admitted writing the reports about three months after the arrests and backdating them. The trial judge acquitted the appellants on several overt acts but convicted them on others and sentenced them to death.

Issues

Whether the trial judge was entitled to convict the first appellant, charged with treason under section 25(1)(c) of the Penal Code, of aiding and abetting treason by invoking the general provision on principal offenders in section 21(1)(c), where the Penal Code creates a specific offence of aiding and abetting treason in section 25(1)(d).
Whether the convictions of the second and third appellants could stand where they rested on the evidence of two prosecution witnesses who had been comprehensively discredited and found to be materially contradictory.
Whether the trial judge's failure to decide, at the close of the prosecution case, whether the accused had a case to answer occasioned a miscarriage of justice.

Orders

Appeal of the second and third appellants allowed.
First appellant's appeal allowed; his conviction under section 25(1)(d) of the Penal Code held to be wrongful.
The appeal is allowed.
The appellants' convictions are quashed and the sentences set aside.
The appellants are to be released from custody forthwith unless otherwise lawfully held.

Key headnotes

Criminal Law & Procedure — Treason — Conviction under the general principal-offender provision where a specific offence exists

Where the Penal Code creates a specific offence of aiding and abetting treason in section 25(1)(d), a court cannot convict an accused of aiding and abetting treason by invoking the general provision in section 21(1)(c) that deems aiders and abettors to be principal offenders.

Evidence — Credibility of Witnesses — Reliance on discredited and self-contradictory witnesses

Where the prosecution case depends on witnesses who are shown to be self-confessed liars, whose evidence is materially contradictory and whose reports were written long afterwards and backdated, such witnesses cannot be relied upon to support a conviction.

Criminal Procedure — No Case to Answer — Duty of the court under section 71 of the Trial on Indictments Decree

It is the duty of the trial court, and of no one else, to decide at the close of the prosecution case whether the accused has a case to answer, whether or not counsel makes a submission of no case to answer.

Criminal Procedure — Conviction for an offence not charged — Minor and cognate offence

An accused charged with treason cannot be convicted of aiding and abetting treason where that is not a minor and cognate offence of the offence charged.

Legislation cited (6)

Penal Code Act s.25(1)(c)
Penal Code Act s.25(1)(d)
Penal Code Act s.21(1)(c)
Penal Code Act s.35
Trial on Indictments Decree s.71
Trial on Indictments Decree s.71(2)

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.