Wakilii

Kilama Fearless Wod Acholi & 32 Others v Uganda (Criminal Appeal 22 of 2024)

High Court · [2025] UGHC 127 · 2025 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from Chief Magistrate's Court convictions for incitement to violence, unlawful assembly, and malicious damage to property
Decision
Conviction for incitement to violence quashed; conviction for unlawful assembly upheld with reduced sentence after deduction of time served

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Holding

Held that the charge sheet for incitement to violence contrary to Section 79 Penal Code Act was incompetent and fatally defective because it failed to identify the specific targeted person, group, class, or community as required by statute, thereby violating the appellant's right to fair hearing under Article 28 of the Constitution. Conviction for incitement to violence quashed and sentence set aside. Held that the conviction for taking part in unlawful assembly was properly established: the assembly at the Mayor's Gardens, though originally convened with legitimate purpose, became unlawful when the procession formed and degenerated into rioting, breaching the peace, and the appellant participated in the unlawful assembly. Conviction and sentence for unlawful assembly upheld.

Outcome

Conviction for incitement to violence quashed; conviction for unlawful assembly upheld with reduced sentence after deduction of time served

Facts

On 7 December 2021, during COVID-19 restrictions, business community leaders in Pader Town Council mobilized an emergency public meeting at the Mayor's Gardens to address hardships from curfew and trade restrictions. The meeting was convened by or with acquiescence of the District LC5 Chairperson and the Resident District Commissioner (RDC). About 200 people attended. When the RDC and District Police Commander (DPC) failed to appear, the crowd became agitated. The business community Chairman and others instigated the crowd to march to Pader District Headquarters to "collect" the RDC and DPC. The appellant, the Mayor of Pader Urban Town Council, joined the procession. The procession passed by Pader Police Station where participants hurled stones and insults at police, burned tyres and plastic cans on the road, attempted to storm the police station, and the appellant used a megaphone to denounce COVID-19 curfew regulations. The procession proceeded to District Headquarters where windows and doors were smashed. Police fired teargas and bullets to disperse the crowd. Rioting spread throughout Pader Town Council with destruction of property and targeting of non-Acholi members of the public. Army was deployed to quell the riots. Thirty-three accused were arrested, tried, convicted, and sentenced by Chief Magistrate's Court for incitement to violence, unlawful assembly, and malicious damage to property.

Issues

  1. Whether the Learned Trial Magistrate erred in Law and in fact when he convicted the Appellant without following the proper procedure in plea-taking thereby leading to a miscarriage of Justice
  2. Whether the Learned Trial Magistrate erred in Law when he failed to evaluate and scrutinize the evidence on Record thereby coming to a wrong conclusion in convicting the Appellant
  3. Whether the charge sheet for incitement to violence was competent and complied with the requirements of the Penal Code Act
  4. Whether the Prosecution proved the ingredients of incitement to violence beyond reasonable doubt
  5. Whether the Prosecution proved the ingredients of unlawful assembly beyond reasonable doubt
  6. Whether the timeliness objection to the appeal had merit

Orders

  • The charge sheet in respect of the first count of incitement to violence contrary to Section 83(1) of the Penal Code Act, Cap. 120 (now Section 79 Cap. 128) was incompetent and fatally defective.
  • Conviction for incitement to violence overturned and quashed.
  • Sentence of twelve (12) months imprisonment for incitement to violence set aside.
  • Conviction for taking part in unlawful assembly contrary to Sections 65 and 66 of the Penal Code Act, Cap. 120 (now Sections 61 and 62 Cap. 128) and sentence of six (6) months imprisonment upheld.
  • Appellant having served ninety-one (91) days or three (3) months and one (1) day of his six (6) months sentence shall serve the remaining eighty-nine (89) days or two (2) months and twenty-nine (29) days.
  • Five appellants' appeals abated for death or withdrawal.
  • Thirteen appellants' appeals dismissed for abandonment.
  • Eighteen appellants struck out from the appeal for failure to appear before the Court.

Rules and key headnotes

Incitement to Violence — Essential Ingredients — Requirement to Identify Targeted Group
The offence of incitement to violence under Section 79 of the Penal Code Act requires that the charge sheet identify and name the specific person, group, class, or community being subjected to targeting by reason of their race, place of origin, political opinions, colour, creed, sex, or office. A charge sheet that omits to specify the targeted victim(s) and merely references the general public is incompetent and fatally defective as it fails to disclose the material particulars of essential ingredients of the offence and thereby derogates the accused's right to a fair hearing under Article 28 of the Constitution.
Unlawful Assembly — Originally Lawful Assembly Becoming Unlawful
Under Section 61(2) of the Penal Code Act, it is immaterial that the original assembling was lawful if, being assembled, participants conduct themselves with a common purpose in a manner that causes persons in the neighbourhood reasonably to fear breach of the peace, or that actually breaches the peace. An assembly convened for legitimate purposes by public officials that subsequently degenerates into a riotous procession breaching the peace constitutes an unlawful assembly.
Identification — Public Figure Known to Witnesses
Where witnesses have prior knowledge of an accused as a public figure, identification evidence is strengthened. An accused who is a well-known public official such as a town council mayor, who is observed in daylight over several hours by multiple witnesses during commission of an offence, and who is conspicuous by operating a megaphone commanding attention in a crowd, is properly identified notwithstanding the presence of hundreds of other persons.
Plea Taking — Language of Court Proceedings — Right to Fair Hearing
Where an accused understands the official language of the court (English), there is no miscarriage of justice if the charge is read and explained in English, even if interpretation in the accused's local language is not explicitly recorded. An accused who follows appellate proceedings in English cannot credibly claim not to have understood trial proceedings in English. Courts must nonetheless meticulously record interpretation in court proceedings especially at crucial stages such as plea taking.
Criminal Appeals — Sentence Deduction — Time Served on Remand and in Custody
In computing sentence, the court must explicitly deduct all time an appellant has spent on remand before being granted bail and all time served in custody after apprehension following abscondment of bail. Failure to make explicit deduction is insufficient and ambiguous. The deduction must be clearly stated in the court's orders.
Freedom of Assembly — Public Order Offences — COVID-19 Restrictions
The constitutional right to freedom of assembly under Article 29 is not a non-derogable right under Article 44 of the Constitution. Restrictions on assembly including COVID-19 public health restrictions are subject to the test of permissible limitations under Article 43 of the Constitution: whether the restriction is acceptable and demonstrably justifiable in a free and democratic society. An assembly convened during COVID-19 restrictions prohibiting public meetings raises questions of lawfulness under the applicable Public Health Rules.

Legislation cited (29)

Cases cited (25)

  • Adan v Republic [1973] EA 445
  • Woolmington v DPP [1935] AC 462
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Abdallah Nabulere and 2 Others v Uganda (Criminal Appeal No. 9 of 1978)
  • Agupiyo Simon and 4 Others v Uganda (Criminal Appeal No. 128 of 2018)
  • Alfred Bumbo v Uganda (Supreme Court Criminal Appeal No. 28 of 1994)
  • James Sawoabiri and Another v Uganda (Supreme Court Criminal Appeal No. 5 of 1990)
  • Moses Bogere & Another v Uganda (Supreme Court Civil Appeal No. 1 of 1997)
  • Pandya v R [1957] EA 336
  • Okeno v Republic [1972] EA 32
  • Charles B. Bitwire v Uganda (Court of Appeal Criminal Appeal No. 23 of 1985)
  • Fredrick Zaabwe v Orient Bank Ltd (Supreme Court Civil Appeal No. 4 of 2006)
  • Fr. Begumisa Narsensio & 3 Others v Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2015)
  • Uganda v Lule David and 4 Others (Constitutional Reference No. 22 of 2020)
  • Human Rights Network Uganda & 4 Others v Attorney General (Constitutional Petition No. 56 of 2013)
  • Moses Mwandha v Attorney General (Constitutional Petition No. 5 of 2007)
  • Charles Onyango Obbo & Andrew Mwenda v Attorney General (Supreme Court Constitutional Appeal No. 2 of 2002)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Abdallah Bin Wendo & Anor v R (1953) 20 EACA 166
  • Nsubuga Ali aka Cobra v Uganda (Court of Appeal Criminal Appeal No. 267 of 2017)
  • Niyonzima Valenzi v Uganda (Court of Appeal Criminal Appeal No. 274 of 2014)
  • Othieno Michael v Uganda (Court of Appeal Criminal Appeal No. 97 of 2020)
  • Rwabugande Moses v Uganda (Supreme Court Criminal Appeal No. 25 of 2014)

Full judgment

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Kilama Fearless Wod Acholi & 32 Others v Uganda (Criminal Appeal 22 of 2024) [2025] UGHC 127 (20 March 2025)
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.