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Rex v Kasule and Others (Criminal Appeals Nos. 184, 185 and 186 of 1948 (Consolidated))

East African Court of Appeal · [1948] EACA 48 · 1948 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated criminal appeals from convictions and death sentences imposed by the High Court of Uganda
Decision
First and third appellants' convictions quashed and sentences set aside; they were ordered released. Second appellant's conviction and sentence upheld.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that gombolola chiefs must be regarded as persons in authority, not police officers, for purposes of receiving confessions from accused persons. The appeals of the first and third appellants were allowed because their statements to the gombolola chief were obtained in circumstances rendering them involuntary — the first appellant was brought bound before the chief who gave a peremptory order 'Tell me how you killed your father', and no caution was administered to either appellant informing them of their right to remain silent. The second appellant's appeal was dismissed as she had made a free and voluntary confession to an Assistant Inspector of Police.

Outcome

First and third appellants' convictions quashed and sentences set aside; they were ordered released. Second appellant's conviction and sentence upheld.

Facts

Three appellants were convicted of murdering Zakaliya Kitwe, who was killed by a violent blow that half-severed his head; his body was dismembered and hidden. The first appellant (Eriya Kasule) was the deceased's son, the second appellant (Alinyikira) was the deceased's widow, and the third appellant (Kamuwanda) was a labourer employed by the deceased for about two weeks in January 1948. A fourth accused was acquitted at trial. The second appellant made a voluntary statement to an Assistant Inspector of Police admitting she became angry and killed her husband because he had threatened to kill her. The first and third appellants made statements to a gombolola chief after being arrested. The first appellant was brought before the chief bound, then unbound, and the chief said to him 'Tell me how you killed your father'. No caution was administered to either the first or third appellant.

Issues

  1. Whether confessions made by the appellants to a gombolola chief were admissible in evidence.
  2. Whether a gombolola chief is a 'police officer' under section 24 of the Uganda Evidence Ordinance or a 'person in authority' for purposes of assessing voluntariness of confessions.
  3. Whether statements made without a caution being administered were voluntary and admissible.
  4. Whether the manner in which the gombolola chief obtained statements from the first and third appellants rendered those statements involuntary.

Orders

  • Appeal of second appellant (Alinyikira w/o Zakaliya) dismissed.
  • Appeals of first appellant (Eriya Kasule) and third appellant (Kamuwanda s/o Muzawula) allowed.
  • Convictions of first and third appellants quashed.
  • Sentences of first and third appellants set aside.
  • First and third appellants to be released forthwith.

Rules and key headnotes

Evidence — Confessions — Gombolola Chiefs as Persons in Authority
For the purpose of statements made to them by accused persons, gombolola chiefs must be regarded not as police officers but as persons in authority, and confessions made to them must satisfy the tests of voluntariness applicable to statements made to persons in authority.
Evidence — Confessions — Test of Voluntariness
A confession, in order to be admissible, must be free and voluntary, and it must be shown affirmatively by the prosecution that it was made without the accused being induced by any promise of favour, menaces, or undue terror; the burden lies on the prosecution to establish voluntariness.
Evidence — Confessions — Peremptory Orders to Speak
Where an accused person under arrest is brought bound before a person in authority who gives a peremptory order such as 'Tell me how you killed your father', anything said by the accused in obedience to such a command cannot be held to have been said voluntarily and is inadmissible.
Evidence — Confessions — Absence of Caution and Voluntariness
Where a trial judge finds that an accused person probably did not consider that he could remain silent when questioned by a person in authority, the judge should rule that any statement made was not voluntary and is inadmissible, notwithstanding the absence of evidence of actual pressure.
Evidence — Confessions — Uganda Evidence Ordinance Section 27
Section 27 of the Uganda Evidence Ordinance, which provides that a confession does not become irrelevant because it was made in answer to questions which the accused need not have answered, applies to cases where in an otherwise voluntary confession the person recording it may have asked one or two questions; it does not render admissible a statement obtained by persistent questioning where the accused was pressed to say something and probably did not consider he could remain silent.
Evidence — Confessions to Police Officers — Section 24 Uganda Evidence Ordinance
Section 24 of the Uganda Evidence Ordinance, which renders admissible confessions made to police officers of or above the rank of Assistant Inspector, refers only to statements made to members of the regular Uganda police force and does not extend to gombolola chiefs or other traditional authorities.

Legislation cited (4)

  • Uganda Evidence Ordinance s.24
  • Uganda Evidence Ordinance s.27
  • Criminal Procedure Ordinance s.136(3)
  • Native Authority Ordinance s.5(3)

Cases cited (7)

  • Wanda s/o Mbago v Rex (Criminal Appeal No. 9 of 1929)
  • Rex v Maganda s/o Okurut (Criminal Appeal No. 45 of 1944)
  • Rex v Okelo Byenzi s/o Anyoro (Criminal Appeal No. 194 of 1938)
  • Regina v Rose [1898] 67 LJ QB 289
  • R. v. Voisin (1918), 12 Cr. App. Rep. 89
  • R. v. Knight (1950) 20 Cr. C. 711
  • R. v. Booth (1910) 5 Cr. App. R. 177

Full judgment

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Rex v Kasule and Others (Criminal Appeals Nos. 184, 185 and 186 of 1948 (Consolidated)) [1948] EACA 48 (1 January 1948)
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.