Wakilii

Godfrey Tinkakalirwe and Another v Uganda (Criminal Appeal No. 5 of 1988; H.C. Criminal Session No. 16 of 1988)

Supreme Court · [1990] UGSC 41 · 1990 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal to the Supreme Court against conviction and sentence of the High Court
Decision
Conviction for kidnapping with intent to murder quashed and 18-year sentence set aside; substituted conviction for kidnapping with intent to confine secretly under s.236 of the Penal Code, with 7 years' imprisonment for each appellant.

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Holding

The Supreme Court held that kidnapping was established by overwhelming evidence, but the prosecution failed to prove the contemporaneous intent to murder required by s.235(1)(a) of the Penal Code; the statutory presumption under s.235(2) could not apply because the victim ended up in police custody. Although the trial judge's summing-up to the assessors was one-sided and biased toward the prosecution, that irregularity did not occasion a miscarriage of justice and was curable under s.137 of the Trial on Indictments Decree, as the evidence of kidnapping was overwhelming. The Court quashed the s.235(1)(a) conviction, set aside the 18-year sentence, and substituted a conviction for kidnapping with intent to confine secretly under s.236, with 7 years' imprisonment for each appellant.

Outcome

Conviction for kidnapping with intent to murder quashed and 18-year sentence set aside; substituted conviction for kidnapping with intent to confine secretly under s.236 of the Penal Code, with 7 years' imprisonment for each appellant.

Facts

The victim, Reverend Rubagasira, and the second appellant, Reverend Kaliisa, led rival religious sects. On 16 April 1985 at Mpara Market, Kabarole District, the second appellant pointed out Rubagasira to two security men as "the enemy". The first appellant, a member of the second appellant's church, grabbed Rubagasira, who was tied up and forced into a pick-up on the second appellant's instruction that he was a guerrilla, and was driven away. He was later taken to Fort Portal Police Station by a NASA operative, Kisembo, and detained. On 3 May 1985 Kisembo moved him to an army barracks; on 12 May 1985 Rubagasira and 21 other detainees were taken from the cells at night and never seen again. The prosecution alleged the appellants kidnapped him intending that he be murdered, motivated by church rivalry and his conversion of their members. The appellants denied involvement, the second appellant raising an alibi placing him at Humura.

Issues

  1. Whether the offence of kidnapping was established on the evidence.
  2. Whether the prosecution proved the contemporaneous intent that the victim be murdered required for a conviction under s.235(1)(a) of the Penal Code, or whether such intent could be presumed under s.235(2).
  3. Whether the trial judge erred in taking the appellants' motive into account and treating it as mens rea.
  4. Whether the trial judge's summing-up to the assessors was biased in favour of the prosecution and occasioned a miscarriage of justice.

Orders

  • Appeal succeeds in part.
  • Conviction under Section 235(1)(a) of the Penal Code quashed and sentence set aside.
  • A conviction for kidnapping with intent to confine secretly and wrongfully contrary to Section 236 of the Penal Code substituted.
  • Each appellant sentenced to 7 years imprisonment.

Rules and key headnotes

Criminal Law — Kidnapping — Elements of the Offence
Kidnapping consists of the forcible seizure and taking away of a person against his or her will.
Criminal Law — Kidnapping with Intent to Murder — Proof of Contemporaneous Intent under Penal Code s.235(1)(a)
To sustain a conviction under s.235(1)(a) of the Penal Code, the prosecution must establish that at the time of the kidnapping there was a contemporaneous intent that the victim be murdered or put in danger of being murdered.
Criminal Law — Statutory Presumption of Intent under Penal Code s.235(2)
The statutory presumption that the necessary intent existed, available under s.235(2) of the Penal Code where the victim has not been seen for six months or more, cannot be invoked where the evidence shows the victim ended up in police custody.
Evidence — Motive — Relevance in Criminal Prosecutions
Motive is generally irrelevant in law to criminal liability, but it is useful evidence because the existence of a motive makes it more likely that the accused in fact committed the offence charged.
Criminal Procedure — Summing-up to Assessors — Duty of Impartiality under Trial on Indictments Decree s.81(1)
Under s.81(1) of the Trial on Indictments Decree a trial judge must sum up the law and evidence to the assessors correctly and impartially, leaving them free to form their opinion independently and leaving no room for a reasonable person to think the judge unfairly favoured one side.
Criminal Procedure — Irregular Summing-up — Curable Irregularity under Trial on Indictments Decree s.137
A summing-up that is one-sided and biased in favour of the prosecution does not occasion a miscarriage of justice, and the irregularity is curable under s.137 of the Trial on Indictments Decree, where the evidence is overwhelming and the assessors could only have reached one conclusion.

Legislation cited (6)

Cases cited (4)

  • Kimeze and Another v Uganda (Criminal Appeal No. 38 of 1979)
  • Barnsley Licencing Justice Exparte (i960) 2.O.L. 167 at 187
  • Sunder and Justices (19Q1) 2.E.B. 357
  • Bassan v R [1960] EA 854

Full judgment

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Godfrey Tinkakalirwe and Another v Uganda (Criminal Appeal No. 5 of 1988; H.C. Criminal Session No. 16 of 1988) [1990] UGSC 41 (13 March 1990)
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.