Wakilii

Androa Asenua & Anor v Uganda (Criminal Appeal 1 of 1998)

Supreme Court · [1998] UGSC 23 · 1998 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal to the Supreme Court from the Court of Appeal's dismissal of an appeal against High Court conviction for murder and sentence of death.
Decision
Convictions of both appellants for murder upheld; the first appellant's death sentence confirmed; the second appellant's death sentence set aside and he is to be detained in safe custody pending an order by the Minister under section 104(1) of the Trial on Indictments Decree.

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Treatment recorded in citing cases followed in 2 · applied in 2 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed both appellants' appeals against their convictions for the murders of Professor Mudhola and Dr Kidubuka. The first appellant's statements to a medicine man and supporting circumstantial evidence properly grounded his conviction, and the second appellant's retracted confession was true and admissible against both under section 28 of the Evidence Act. Although the Court of Appeal misdirected itself on the burden of proving an alibi, no injustice resulted, and the 1995 Constitution's fair-trial guarantees did not apply to a 1993 confession. The first appellant's death sentence was confirmed; the second appellant's death sentence was set aside owing to unresolved doubt that he was under eighteen.

Facts

The appellants were convicted of murdering Professor Mudhola, Vice-Chairman of the Constitutional Commission, and Dr Kidubuka. Adherents of a group calling itself the 9th October movement sought to frustrate the Commission's work by killing Mudhola, and the appellants were enlisted to do so. On or about 15 February 1993 the first appellant told a medicine man, Ali, in the presence of P.W.16 Jane Nakate, that he wanted to kill Mudhola and needed protective medicine. On 20 February 1993, on the instructions of a Captain Kaaya and a Lt. Annet, the second appellant drove the first appellant, who carried a grenade, to Container Bar in Wandegeya where the deceased were drinking. The first appellant threw the grenade, fatally injuring both men, who died the next day. Days later the first appellant told Ali he had killed Mudhola and wanted protection from arrest, and a written document (exh. P20) found at his home, cleansing the ghosts of the deceased, confirmed the killing. The second appellant made a confession (exh. P2) to a magistrate admitting he drove the assailant knowing the mission. Both appellants raised alibis only at trial.

Issues

  1. Whether the second appellant was validly tried on an indictment notwithstanding the confusion at the committal stage, and whether any irregularity occasioned a failure of justice.
  2. Whether the courts below erred in their treatment of the appellants' alibis and shifted the burden of proof to the appellants.
  3. Whether the conviction of the first appellant rested on speculation about witchcraft rather than evidence, and whether the statements he made to Ali were admissible confessions.
  4. Whether the second appellant's retracted and repudiated confession was admissible and could be relied on against both appellants.
  5. Whether reliance on the second appellant's extra-judicial statement contravened Articles 28(3)(e) and 28(11) of the 1995 Constitution.
  6. Whether the second appellant, being possibly under 18 years at the time of the offence, was liable to the sentence of death.

Orders

  • The appeals against the convictions of both appellants are dismissed.
  • The appeal against the sentence of death passed against the first appellant is dismissed.
  • The appeal by the second appellant against the sentence of death succeeds.
  • The second appellant is to be detained in safe custody pending an order to be made under Section 104(1) of the Trial on Indictments Decree by the Minister.

Key headnotes

Criminal Procedure — Defence of Alibi — Burden of Proof
An accused person who sets up an alibi does not thereby assume the burden of proving its truth; the burden of disproving the alibi, and of proving guilt, remains throughout on the prosecution.
Criminal Procedure — Defence of Alibi — Belated Disclosure and Credibility
An alibi should be disclosed at the earliest possible opportunity; where it is raised belatedly, the delay goes to the credibility and weight of the defence and may render the alibi of little or no value.
Evidence — Confessions — Definition
A confession is an unequivocal admission of having committed an act which in law amounts to a crime; it must admit in terms the offence, or at any rate substantially all the facts which constitute the offence.
Evidence — Confessions — Confession Implicating Co-Accused — Evidence Act s.28
Where persons are tried jointly for the same offence, a confession by one which affects himself and a co-accused may be taken into consideration under section 28 of the Evidence Act against the co-accused as well as against the maker.
Evidence — Retracted and Repudiated Confessions — Caution and Corroboration
A court may convict on a retracted or repudiated confession, but must approach it with caution and be fully satisfied in all the circumstances that it is true; corroboration is desirable but not required in law where the court is satisfied the confession cannot but be true.
Criminal Procedure — Appeals — Curing of Misdirection
A subsequent misdirection cannot be cured by an earlier correct direction; the correct position is the reverse.
Constitutional Law — Fair Trial Rights — Non-Retrospectivity
The fair-trial guarantees in Articles 28(3)(e) and 28(11) of the 1995 Constitution do not apply to a confession made in 1993, before the Constitution came into force.

Legislation cited (13)

  • Trial on Indictments Decree 1971 s.137
  • Trial on Indictments Decree 1971 s.93
  • Trial on Indictments Decree 1971 s.104(1)
  • Criminal Procedure Code s.331(1)
  • Evidence Act s.24(1)(b)
  • Evidence Act s.24(2)
  • Evidence Act s.28
  • Constitution of Uganda 1995 art.28(3)(e)
  • Constitution of Uganda 1995 art.28(11)
  • Constitution of Uganda 1995 art.23(3)
  • Criminal Justice Act 1967 (UK) s.11
  • Evidence (Amendment) Act 1985
  • Evidence (Statements to Police Officers) Rules S.I 43-1 (revoked)

Cases cited (22)

  • R. vs. Thakar Singh s/o Kahir Singh (1934) 1 E.A.C.A. 110
  • L. Aniseth v. Republic (1963) E.A. 206
  • R v Johnson Vol. 46 Criminal Appeal Reports 55
  • Mugisha v. Uganda (1976) H.C.B. 246
  • Ntale vs. Uganda (1968) E.A. 365
  • Sekitoleko vs. Uganda (1967) E.A. 531
  • R vs. Chemulon Wero Olancro (1937) 4 E.A.C.A. 46
  • Ezekia vs. Republic (1972) E.A. 42
  • R. vs. Sukha Singh s/o Wazir Singh And others (1939) 6 E.A.C.A. 145
  • R. vs. Ahmed bin Abdul Hafid (1934) 1 E.A.C.A. 76
  • E. Nsubuga vs. Uganda (1992 - 1993) H.C.B. 24
  • Oketh Okale vs. Republic (1965) E.A. 555
  • R. vs Kifungu s/o Nusurupia (1941) 8 E.A.C.A 89
  • R. vs. Kituyan s/o Swandetti (1941) 8 E.A.C.A. 56
  • Waibi vs. Uganda (1968) E.A. 278
  • Goba s/o Gindanenanya vs. R (1953) 20 E.A.C.A. 318
  • Tuwamoi .vs Uganda (1967) E.A. 84
  • Tuvuru vs Uganda (1992 - 1993) H.C.B. 7
  • Woolmington vs. Director of Public Prosecutions (1935) A.C. 462
  • Miranada vs. Arizona 384 U.S. 436 (1996)
  • Beronda vs. Uganda (1974) E.A. 46
  • Namulobi v Uganda (Criminal Appeal No. 16 of 1997)
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.