Wakilii

Oder v Uganda and Another (CRIMINAL APPEAL No. 022 2024)

High Court · [2025] UGHC 144 · 2025 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction and sentence by the Chief Magistrate's Court of Pader
Decision
Conviction for incitement to violence quashed and sentence set aside. Conviction for unlawful assembly upheld. Appellant to serve remaining sentence of 89 days after deduction of time already served.

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Holding

The High Court allowed the appeal in part for the sole remaining appellant (A33). The conviction for incitement to violence was quashed because the charge sheet was fatally defective—it failed to identify the targeted person, group, or class as required by Section 79 of the Penal Code Act. However, the conviction for taking part in an unlawful assembly was upheld. The court found that although the original meeting at the Mayor's Gardens was lawfully called, the assembly became unlawful when participants formed a procession, marched to the District Headquarters and Police Station, and engaged in riotous conduct including destroying property, burning tyres, throwing stones, and breaching the peace. The appellant, as Mayor of Pader Town Council, was found to have participated in the unlawful assembly by remaining with the procession and using a megaphone to denounce COVID-19 guidelines at the Police Station.

Outcome

Conviction for incitement to violence quashed and sentence set aside. Conviction for unlawful assembly upheld. Appellant to serve remaining sentence of 89 days after deduction of time already served.

Facts

On 7 December 2021, during COVID-19 lockdown restrictions in Pader District, an emergency public meeting was organized at the Mayor's Gardens to address hardships faced by the business community due to curfew and trade restrictions. The meeting was attended by District Leaders including the LC5 Chairperson and the appellant, who was Mayor of Pader Urban Town Council. The Resident District Commissioner (RDC) and District Police Commander (DPC) did not attend. When the crowd learned the RDC and DPC would not appear, the assembly became agitated. At the instigation of leaders, a procession of 100-200 people formed and marched toward the District Headquarters to confront and collect the RDC and DPC. The procession passed Pader Police Station twice and engaged in violent conduct including destroying property at the District Headquarters and Police Station, burning tyres on roads, throwing stones at police officers, hurling insults, and attempting to storm the Police Station. The appellant remained with the procession and was observed using a megaphone at the Police Station denouncing COVID-19 curfew regulations. Police fired teargas and bullets to disperse the crowd. The rioting spread through Pader Town, causing further destruction including attacks on non-Acholi members of the public. The Army was deployed to quell the violence. The appellant and 32 others were arrested and charged.

Issues

  1. Whether the Learned Trial Magistrate erred in law and fact when he convicted the Appellants without following proper procedure in plea-taking thereby leading to a miscarriage of justice.
  2. Whether the Learned Trial Magistrate erred in law and fact when he relied on weak, unsatisfactory and circumstantial evidence to convict certain Appellants.
  3. 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 Appellants.
  4. Whether the charge sheet for the offence of incitement to violence was competent and whether it sufficiently disclosed the material particulars required by the statute.
  5. Whether the ingredients of the offence of incitement to violence contrary to Section 79 of the Penal Code Act were established beyond reasonable doubt.
  6. Whether the ingredients of the offence of taking part in an unlawful assembly contrary to Sections 61 and 62 of the Penal Code Act were established beyond reasonable doubt.

Orders

  • The charge sheet in respect of the first count charging the Appellant with incitement to violence contrary to Section 83(1) of the Penal Code Act (now Section 79 of Cap. 128) was incompetent and fatally defective and consequently the conviction is overturned and quashed and the sentence of twelve (12) months imprisonment is set aside.
  • The conviction for taking part in an unlawful assembly contrary to Sections 65 and 66 of the Penal Code Act (now Sections 61 and 62 of Cap. 128) and the sentence of six (6) months imprisonment imposed by the Trial Court is upheld.
  • The Appellant having already served ninety-one (91) days or three (3) months and one (1) day of his six (6) months' sentence shall now serve the remaining part of his sentence of eighty-nine (89) days or two (2) months and twenty-nine (29) days.
  • Either party may institute a second appeal to the Court of Appeal within the time prescribed.

Rules and key headnotes

Charge Sheet Requirements — Incitement to Violence — Statutory Requirement to Identify Targeted Persons or Groups
A charge sheet for the offence of incitement to violence under Section 79 of the Penal Code Act must specify and identify the person, group, class or community being targeted by reason of their race, place of origin, political opinions, colour, creed, sex or office. Failure to disclose this material particular renders the charge sheet incompetent and fatally defective, as it does not sufficiently inform the accused of the case to answer, thereby violating the constitutional right to a fair hearing under Article 28 of the Constitution.
Unlawful Assembly — Transformation of Lawful Assembly into Unlawful Assembly
Under Section 61(2) of the Penal Code Act, it is immaterial that an assembly was originally lawful if the persons assembled subsequently conduct themselves with a common purpose in a manner that causes persons in the neighbourhood to reasonably fear a breach of the peace, or if they actually breach the peace. A lawful public meeting may therefore become an unlawful assembly by virtue of the subsequent conduct of its participants.
Unlawful Assembly — Ingredients of the Offence — Participation
To establish the offence of taking part in an unlawful assembly, the prosecution must prove: (1) there was an assembly of three or more persons; (2) the common intent of the assembly was to commit an offence rendering it unlawful, or the assembly originally being lawful became unlawful by conduct threatening or breaching the peace or provoking others to breach the peace; and (3) the accused participated in the unlawful assembly. Remaining with and addressing a riotous crowd using amplification equipment constitutes participation.
Fair Trial Rights — Language of Proceedings — Plea Taking
Article 28(3)(b) of the Constitution requires that persons charged with criminal offences be informed of the offence in a language they understand. However, where an accused understands the official English language and proceedings are conducted in English with an interpreter present and available, no miscarriage of justice is occasioned even if the record does not explicitly note interpretation was provided at every stage, particularly where the accused has demonstrated understanding by following subsequent appeal proceedings in English.
Sentencing — Deduction of Time Already Served on Remand and in Custody
When sentencing a convicted person, the court must explicitly deduct time already spent on remand before bail and time served in custody after apprehension for jumping bail. Failure to make an explicit deduction and stating only that the sentence runs from the date of apprehension is insufficient and ambiguous. The total time in custody must be calculated and deducted from the sentence imposed.
Identification Evidence — Public Figures — Identification During Broad Daylight Incident
Where witnesses had prior knowledge of an accused who is a public figure holding office as Mayor, where the incident occurred in broad daylight and lasted several hours, where witnesses were in close proximity to the accused, and where the accused was conspicuous by using a megaphone, the requirements for reliable identification evidence are satisfied and mistaken identity is excluded.

Legislation cited (28)

Cases cited (25)

  • Woolmington v DPP [1935] AC 462
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Adan v Republic [1973] EA 445
  • Abdallah Nabulere and 2 Others v Uganda (Criminal Appeal No. 09 of 1978) [1979] HCB 77
  • 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. 05 of 1990)
  • Moses Bogere & Another v Uganda (Supreme Court Civil Appeal No. 1 of 1997)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 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
  • 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)
  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2015)
  • Uganda v Lule David and 4 Others (Constitutional Reference No. 022 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)

Full judgment

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Oder v Uganda and Another (CRIMINAL APPEAL No. 022_2024) [2025] UGHC 144 (20 March 2025)
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