Gabula Bright Africa v Uganda [1995] UGSC 15

Supreme Court · 1995 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal against conviction for treason from the High Court at Jinja

Decision

Appeal against conviction dismissed; conviction of treason and sentence of death upheld on the basis of overt act 17, although the finding on overt act 19 was set aside.

The full judgment

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Holding

On appeal against a treason conviction, the Supreme Court held that a witness who infiltrated the conspiracy as a government spy or agent provocateur — participating to expose the plotters without expecting to share — is not an accomplice, so her evidence required no corroboration. A trial court may accept the truthful parts of a witness's testimony while rejecting the untruthful. Under section 80(2) of the Trial on Indictment Decree, a trial within a trial may determine the admissibility of any statement challenged by the accused, not only a confession. Mere attendance at a treasonable meeting is insufficient without proof of what the accused said, so overt act 19 failed; but the conviction stood on overt act 17. Appeal dismissed.

Facts

The appellant and eight others were charged with treason and, in the alternative, misprision of treason, arising from the "Nineth October Movement" (NOM), an organisation allegedly formed to overthrow the NRM government by force of arms and restore former President Obote. Christine Tindiwegi (PW8) interacted with NOM members and, on her account, reported to security officers from the outset and acted as a government spy, attending meetings and travelling toward Nairobi with the appellant. The appellant authored two documents (exhibits P.24 and P.25) detailing tours of NOM camps, photographs of camp inmates, expenses incurred, castigation of the government and pledges of loyalty to Obote, with a stated determination to march on Kampala. He gave the documents to Tindiwegi to deliver to NOM's command in Nairobi, but she instead handed them to the security officer Kamukama (PW10). The High Court at Jinja convicted the appellant of treason on overt acts 17 and 19 and sentenced him to death, while acquitting his co-accused of treason. He appealed against conviction.

Issues

Whether the key prosecution witness was an accomplice whose evidence required corroboration, or a government spy or agent provocateur whose evidence did not.
Whether the trial court was entitled to accept the parts of a witness's evidence it believed to be true while rejecting the parts it found untrue.
Whether a trial within a trial could properly be held under section 80 of the Trial on Indictment Decree to determine the admissibility of a document that was not a confession in the ordinary sense.
Whether overt act 17 (authorship of treasonable documents) was proved against the appellant beyond reasonable doubt.
Whether overt act 19 (attendance at meetings to plan an overthrow) was proved without evidence of what the appellant actually said at those meetings.
Whether the trial court's failure to resolve alleged inconsistencies and contradictions in the prosecution evidence was fatal to the conviction.

Orders

Grounds six and seven of the appeal succeed; ground eight succeeds in so far as it concerns overt act 19.
The finding that overt act 19 was proved against the appellant is set aside.
The conviction of treason is upheld on the basis of overt act 17.
Appeal dismissed.

Key headnotes

Evidence — Accomplices and Agents Provocateurs — Distinction and Need for Corroboration

A person who participates in a crime as a government spy or agent provocateur, acting to expose the offenders and without expecting any share in the consequences or proceeds of the crime, is not an accomplice, and her evidence does not require corroboration.

Evidence — Credibility of Witnesses — Acceptance of Part of a Witness's Testimony

A trial court is entitled to accept and rely upon the portion of a witness's evidence it believes to be true while rejecting the portions it considers untrue.

Criminal Procedure — Trial within a Trial — Admissibility of Challenged Statements under section 80 of the Trial on Indictment Decree

Because section 80(2) of the Trial on Indictment Decree defines a confession to include any statement the admissibility of which is challenged by the accused, a trial within a trial may properly be held to determine the admissibility of such a statement even where it is not a confession in the ordinary sense.

Criminal Law — Treason — Proof of Overt Act by Attendance at a Meeting

To establish treason by an accused's attendance at a meeting where a plot was discussed, the prosecution must prove what the accused actually said at the meeting and that what he said was treasonable; mere proof of attendance is insufficient, and an inference of active participation cannot be drawn from subsequent conduct alone.

Criminal Procedure — Inconsistencies in Prosecution Evidence — When Fatal to Conviction

Minor inconsistencies, contradictions or discrepancies in prosecution evidence that do not indicate that the witnesses told deliberate lies are not fatal to a conviction, even where the trial court did not specifically resolve each of them.

Legislation cited (3)

Penal Code Act s.25(1)(c)
Penal Code Act s.27(b)
Trial on Indictment Decree s.80

Cases cited (5)

Habibu Kawa vesta and others v. R (1934) 1. E.A.C.A 191
Hashmain's case (supra)
Mattaka and others v Republic (1971) E.A. 495
Muwonge and others v Uganda (Criminal Appeal No. 6 of 1990)
Ongiertho and others v Uganda (Criminal Appeal No. 1 of 1993)

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