THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA SITTING AT LUWERO
CRIMINAL SESSIONS CASE No. 0152 OF 2015
UGANDA …………………………………………………… PROSECUTOR
5 VERSUS
NANSAMBA ROBINAH …………………………………………………… ACCUSED
Before Hon. Justice Stephen Mubiru
JUDGMENT
10 The accused in this case is indicted with one count of Murder c/s 188 and 189 of the Penal Code
Act. It is alleged that the accused and another still at large, during the night of 9 th June, 2014 at
Nawabango village, Zirobwe sub-county in Luwero District murdered one Erima Ivan.
The events leading to the prosecution of the accused as narrated by the prosecution witnesses are
15 briefly that on the fateful day, the deceased and his cousin P.W.2 Kayanja Mike spent the day at
school. The deceased had earlier confided in P.W.2 that he had stolen some money from the
accused and they had spent part of it at school. After school, they went to visit a friend. While
there the uncle of the deceased, a brother to the accused, arrested them and tied their hands
behind their backs with ropes on suspicion that the deceased had stolen money from the accused.
20 He led the two boys to the home of the accused from where he subjected them to corporal
punishment which on occasion was administered in an indiscriminate manner. Their uncle used a
total of three sticks in administering the corporal punishment on them after which he told them to
return to the home of their grandmother P.W.1 Ms. Edinodio Oliver. Along the way, the
deceased collapsed with his hands still tied to the back. Shortly after he felt thirsty and asked
25 P.W2 to give him some water. P.W.2 left him behind but was afraid of the dark and spent the
night in hiding. In the morning he learnt that the deceased was dead and he saw his body about
twenty metres away from the spot where he had collapsed the previous evening. The accused
1
was arrested in connection with the death. At her trial, she opted to remain silent and not to call
any witnesses in her defence.
Since the accused in this case pleaded not guilty, like in all criminal cases the prosecution has the
5 burden of proving the case against her beyond reasonable doubt. The burden does not shift to the
accused person and the accused is only convicted on the strength of the prosecution case and not
because of weaknesses in her defence, (see Ssekitoleko v. Uganda [1967] EA 531). The accused
does not have any obligation to prove her innocence. By her plea of not guilty, the accused put in
issue each and every essential ingredient of the offence with which she is charged and the
10 prosecution has the onus to prove each of the ingredients beyond reasonable doubt before it can
secure her conviction. Proof beyond reasonable doubt though does not mean proof beyond a
shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the
accused, at its best creates a mere fanciful possibility but not any probability that the accused is
innocent, (see Miller v. Minister of Pensions [1947] 2 ALL ER 372).
15
For the accused to be convicted of murder, the prosecution must prove each of the following
essential ingredients beyond reasonable doubt;
1. Death of a human being occurred.
2. The death was caused by some unlawful act.
20 3. That the unlawful act was actuated by malice aforethought; and lastly
4. That it was the accused who caused the unlawful death.
Death may be proved by production of a post mortem report or evidence of witnesses who state
that they knew the deceased and attended the burial or saw the dead body. In the instant case the
25 prosecution did not adduce any post mortem report in evidence. It instead relies on the testimony
of P.W.1 Ms. Edinodio Oliver, the grandmother of the victim saw the body at the scene, and
attended his burial. It also relies on the testimony of P.W.2 Kayanja Mike, a cousin of the
deceased, was the last person to see him alive and he too saw the body at the scene by the
roadside. The accused did not offer any evidence. This evidence was not controverted in their
30 cross-examination. In agreement with the assessors, I find that on basis of that evidence, the
prosecution has proved beyond reasonable doubt that Kayanja Mike, died on 30th May 2013.
2
The prosecution had to prove further that the death of Kayanja Mike was unlawfully caused. It is
the law that any homicide (the killing of a human being by another) is presumed to have been
caused unlawfully unless it was accidental or it was authorized by law (see R v. Gusambizi s/o
5 Wesonga (1948) 15 EACA 65). Attribution of causal responsibility is a preliminary step towards
the eventual attribution of criminal culpability to the accused. The court may use either the
natural consequences test, the substantial cause test, or both. An accused will be held responsible
for the final outcome that constitutes the offence if it is the natural result of what the accused said
or did, in the sense that it was something that could reasonably have been foreseen as the
10 consequence of what he or she said or did. An accused will also be held responsible for the final
outcome is a substantial and operating result of what the accused said or did, but not otherwise.
If the subsequent event is so overwhelming as to make the act of the accused merely part of the
history, a novus actus interveniens, the chain of causation will have been broken.
15 It is often the practice that in proving the death of a deceased person in homicide cases,
prosecution adduces evidence as to the cause of death of the deceased by presenting medical
evidence as to the cause of death and also call on expert witness (usually the pathologist who
carried out the autopsy) to testify as to the cause of death of the deceased person. This is because
in a murder trial, the prosecution must show conclusively that death was caused by the act of the
20 accused. In other words, there must be a nexus between the act of the accused and the death of
the victim. That notwithstanding, it is now settled that medical evidence though desirable in
establishing the cause of death in a case of murder, is not always essential. Where the victim dies
in circumstances in which there is abundant evidence of the manner of death, medical evidence
can be dispensed with, e.g. where the victim died on the spot by gunshots (see Enewoh v. State
25 (1990) 4 NWLR (Pt. 145) 46 and Idemudia v. The State, (1999)5 SCNJ 47 decisions of the
Supreme Court of Nigeria). In the latter case there was abundant evidence from eye-witnesses
that the appellant shot and killed deceased instantly. In such cases where the fatality of the
injuries inflicted is established, the position of the law is that the cause of death can properly be
inferred that the injuries caused the death. In other words, where cause of death is obvious, it is
30 not a vital component of proof to have medical evidence to establish it. Such a situation arises
where death was instantaneous or nearly so.
3
For example in Abbas Muhammad v. The State (2017) LPELR-42098 (SC), a decision of the
Supreme Court of Nigeria, the Appellant struck the deceased on the head. He fell down
unconscious, never regained consciousness until he died a few hours later in hospital. Medical
5 evidence was found to be unnecessary to determine the cause of death in the circumstances of the
case. It was held that it could properly be inferred that the wound inflicted caused the death of
the deceased. The court opined that medical evidence though desirable in establishing cause of
death in a case of murder, is not essential provided that there are facts, which sufficiently show
cause of death to the satisfaction of the Court.
10
Similarly in Enewoh v. State (1990) 4 NWLR (Pt. 145) 46, the deceased’s shouts of “Ukwa Egbe
is killing me,” brought his wife, PW1, to the scene where she saw appellant hitting him with a
rod. The appellant’s son, PW4, pleaded with his father to stop hitting the deceased. But he kept
on, and the deceased later died in hospital. The person, who identified the corpse to the doctor,
15 died before trial. The issue was whether the prosecution proved beyond reasonable doubt the
identity of the body of the deceased notwithstanding its failure to call as witness the person who
identified the body of the deceased to the doctor who performed the autopsy. The Supreme Court
of Nigeria held that where medical evidence is essential as to the cause of death, it is invariably
also essential that the person, who allegedly identified the corpse of the deceased to the Doctor,
20 is called to testify as to identification, unless identity of the deceased can be inferred. From the
circumstances of the case, the totality of the evidence showed unmistakably that the body on
whom a doctor performed a post mortem examination was that of the deceased, a separate
witness, though desirable, was not a necessity.
25 The position is different where there is a degree of remoteness between the act or omission of an
accused and the result which is alleged to constitute an offence. Where the eventual result may
be the product of additional factors which are more directly connected than is the conduct of the
accused, the function of the law of causation is to identify the conditions under which the result
may nevertheless be attributed to the accused. An intervening cause will break the chain of
30 causation if it is independent of the acts of the accused and so potent in causing death.
4
For example in Gichunge v. Republic [1972] 1 EA 546, during January 1971, the appellant
stabbed the deceased in the chest causing a collapse of the left lung. The deceased was on 22 nd
January discharged from hospital, but was readmitted a week later and on 7 th February he died of
pneumonia and tetanus. The doctor’s report as to cause of death was admitted under the
5 equivalent of our section 30 of The Evidence Act without the doctor being called as he had left
the country and the statement had been made in the discharge of professional duty. It read “death
was due to pneumonia and tetanus following a stabbing injury to the chest”. On this evidence it
was found that the appellant caused the deceased man’s death and he was convicted of murder.
On appeal, it was held that in view of the possibility that death had been caused by an
10 intervening circumstance, it had not been proved that death was caused by the appellant. The
appellate court opined;
So far as this statement is considered as an expression of fact, it is correct. The
pneumonia and tetanus followed, in point of time, the stabbing. But there is
absolutely no evidence, anywhere in the record, that the pneumonia and tetanus were
15 a direct result and consequence of the stabbing. It is most likely that they were, but
we cannot exclude the possibility that, had he been cross-examined, Dr. Knights
might have conceded the possibility that the pneumonia and tetanus supervened
independently of the stabbing, in which case the appellant would not be responsible
for the death.
20
Although medical evidence is not essential in establishing the cause of death where the deceased
was attacked with lethal weapon and died instantly, in the instant case the evidence has not
established that the sticks were thick and lethal. P.W.2 described them as having been about one
inch in diameter and about on metre long. They were also not applied very forcefully as to cause
25 instant death. The fatality of the injuries inflicted, if any is not established by the available
evidence. It is not known whether the beating inflicted any external or internal injuries on the
deceased whose degree of severity was such as was capable of causing death. The death was
instantaneous or nearly so. Where the circumstantial evidence does not establish specifically that
the cause of death was due to an unlawful act, the cause has not been proved. Unexplained
30 deaths are not unusual and not rare in medical history. The mere fact that the deceased died hours
after corporal punishment being inflicted on him with the assistance the accused does not
5
eliminate completely the possibility of other factors contributing substantially to the cause of
death and this makes it mandatory to medically examine the corpus delicti.
The circumstantial evidence must unequivocally established the cause of death and also provide
5 the necessary nexus between the death of the victim and the act of the accused. The
circumstantial must establish the cause to a moral certainty, and to the exclusion of every other
reasonable hypothesis. In a case depending exclusively upon circumstantial evidence, the court
must find before deciding upon conviction that the exculpatory facts are incompatible with the
innocence of the accused and incapable of explanation upon any other reasonable hypothesis
10 than that of guilt. The circumstances must be such as to produce moral certainty, to the exclusion
of every reasonable doubt. It is necessary before drawing the inference of the accused’s
responsibility for the offence from circumstantial evidence to be sure that there are no other co-
existing circumstances which would weaken or destroy the inference (see Shubadin Merali and
another v. Uganda [1963] EA 647; Simon Musoke v. R [1958] EA 715; Teper v. R [1952] AC
15 480 and Onyango v. Uganda [1967] EA 328 at page 331).
Considering the evidence relating to causation as a whole, it appears that it cannot be decided
with moral certainty that the immediate cause of death was corporal punishment. The exact time
when the deceased died is unknown, increasing the possibility that the proximate cause of death
20 is not associated with the stabbing. There is a reasonable doubt created by the available evidence
as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not
made out the case and the accused is entitled to an acquittal (see Woolmington v. Director of
Public Prosecutions, [1935] AC 462). Much as the court can infer the cause of death from the
prevailing circumstances, it would amount to absurdity to establish the cause on mere inferences,
25 presumptions and inconclusive circumstantial evidence. For that reason, the prosecution has
failed to prove beyond reasonable doubt that corporal punishment was the proximate cause of the
deceased's death. Since the prosecution has failed to prove one of the essential ingredient of the
offence, it is not necessary to evaluate the evidence relating to the rest of the ingredients. The
accused is accordingly acquitted of the offence of Murder c/s 188 and 189 of the Penal Code Act.
30
6
However, according to section 87 of The Trial on Indictments Act, when a person is charged with
an offence and facts are proved which reduce it to a minor cognate offence, he or she may be
convicted of the minor offence although he or she was not charged with it (see also Uganda v.
Leo Mubyazita and two others [1972] HCB 170; Paipai Aribu v. Uganda [1964] 1 EA 524 and
5 Republic v. Cheya and another [1973] 1 EA 500). The minor offence sought to be entered must
belong to the same category with the major offence. The considerations of what constitutes a
minor and cognate offence were set out in Ali Mohamed Hassani Mpanda v. Republic [1963] 1
EA 294, where the appellant was charged together with others with obstructing police officers in
the due execution of their duty contrary to s. 243 (b) of The Penal Code Act. The magistrate
10 found the appellant not guilty of the offence charged but convicted him of the minor offence of
assault occasioning actual bodily harm, contrary to s.241 of The Penal Code Act. On appeal it
was considered whether the magistrate had power to substitute a conviction of the lesser offence
and whether that offence must be cognate with the major offence charged. The High Court of
Tanganyika held that;
15 s. 181 of The Criminal Procedure Code (similar to section 87 of The Trial on
Indictments Act, Cap 16) can only be applied where the minor offence is arrived at
by a process of subtraction from the major charge, and where the circumstance
embodied in the major charge necessarily and according to the definition of the
offence imputed by that charge constitute the minor offence also, and further where
20 the major charge gave the accused notice of all the circumstances going to constitute
the minor offence of which the accused is to be convicted.
Section 87 of The Trial on Indictments Act envisages a process of subtraction: the court
considers all the essential ingredients of the offence charged, finds one or more not to have been
25 proved, finds that the remaining ingredients include all the essential ingredients of a minor,
cognate, offence and may then, in its discretion, convict of that offence. A person indicted with a
grave offence and facts are proved which reduce it to another of a similar type, he or she may be
convicted of the minor offence although he or she was not indicted with it. The circumstances
embodied in the major indictment necessarily and according to the definition of the offence
30 imputed by that indictment constitute the minor offence too. The manner in which the murder
7
was alleged to have been committed necessarily placed the accused in this case of the offence of
torture.
Under section 2 (1) (b) of The Prevention And Prohibition of Torture Act, 2012 torture is defined
5 to include any act or omission, by which "severe pain or suffering" whether physical or mental,
is intentionally inflicted on a person by or at the instigation of or with the consent or
acquiescence of any person whether a public official or other person acting in an official or
private capacity for such purposes as punishing that person for an act he or she or any other
person has committed, or is suspected of having committed or of planning to commit.
10
In my view, on the facts of this case the offence of Torture is contained entirely in the second
element of the offence of murder which required proof that the death of the accused was caused
by an unlawful act. Therefore, the indictment for an offence under sections 188 and 189 of The
Penal Code Act gave the accused notice of all the circumstances constituting the offence under
15 section 4 (1) of The Prevention And Prohibition of Torture Act, 2012 for which she can be
convicted. Under that section, a person who performs any act of torture as defined by the Act
commits an offence and is liable on conviction to imprisonment for fifteen years or to a fine of
three hundred and sixty currency points or both. Under section 2 (2) (a) “severe pain or
suffering” is defined as including the intentional infliction or threatened infliction of physical
20 pain or suffering. The offence is constituted by the following elements;
1. Severe physical or mental pain or suffering was inflicted upon the victim.
2. Such pain or suffering did not arise only from, and was not inherent in or incidental to,
lawful sanctions. It was inflicted intentionally.
3. It was inflicted for such purposes as: obtaining information or a confession, punishment,
25 intimidation or coercion.
4. It is the accused who inflicted the suffering
It is the uncontroverted evidence of P.W.2 that the deceased had his hand tied to the back as he
was beaten by his uncle. This beating inflicted severe pain and suffering on the deceased. Under
30 Article 24 of The constitution of the Republic of Uganda, 1995, subjecting persons to any form
of torture or cruel, inhuman or degrading punishment is prohibited. According to section 94 )9)
8
of The Children Act, no child is to be subjected to corporal punishment. Therefore the severe
physical and mental pain or suffering to which the deceased was subjected did not arise only
from, and was not inherent in or incidental to, lawful sanctions. It was inflicted intentionally for
purposes of punishing him for money he had stolen from the accused. The prosecution has
5 proved not only that the acts were deliberate, but also the existence of actual, subjective,
intention on the part of the brother of the accused to cause severe pain or suffering by his
conduct. The only question that remains is whether the accused was a participant in inflicting
that severe physical and mental pain or suffering on the deceased.
10 Under section 19 of The Penal Code Act, there are different modes of participation in crime;
direct perpetrators, joint perpetrators under a common concerted plan, accessories before the
offence, etc. Each of the modes of participation may, independently, give rise to criminal
responsibility. Individual criminal responsibility can be incurred where there is either aiding or
abetting, but not necessarily both. Either aiding or abetting alone is sufficient to render the
15 perpetrator criminally responsible. “Aiding” and “abetting” are not synonymous though they are
so often used conjunctively and treated as a single broad legal concept. They are distinct legal
concepts. Abetting implies facilitating, encouraging, instigating or advising the commission of a
crime. It involves facilitating (making it easier, smoother or possible) the commission of an act
by being sympathetic thereto. Aiding means assisting (usually giving material support) or
20 helping another to commit a crime.
A distinction is to be made between aiding and abetting and participation in pursuance of a
common purpose or design to commit a crime. In crimes requiring specific intent, it is not
necessary to prove that the aider and abettor shared the mens rea of the principal, but that he
25 must have known of the principal perpetrator’s specific intent. With respect to aiding and
abetting, the only mental element required is proof that the accused knew of the intent of the
actual perpetrator, but he need not share this specific intent. If the accused was only aware of the
criminal intent of her brother and she gave it substantial assistance or encouragement in the
commission of the crime then she was only an aider and abettor but if she shared the intent of the
30 brother, then she is criminally responsible both as a co-perpetrator and as an aider and abettor.
9
In that regard, the prosecution is required to demonstrate that the accused carried out an act of
substantial practical assistance, encouragement, or moral support to the principal offender,
culminating in the latter’s actual commission of the crime. The assistance must have a substantial
effect on the commission of the crime. It must be shown that his participation substantially
5 contributed to, or had a substantial effect on the consummation of the crime, but does not
necessarily constitute an indispensable element, i.e. a conditio sine qua non, of the crime. It is
not necessary to prove that he had authority over that other person. The prosecution must prove
that she had knowledge that acts she performed, would assist in the commission of the crime by
the principal or that the perpetration of the crime would be the possible and foreseeable result of
10 his conduct.
Under section 20 of The Penal Code Act, when two or more persons form a common intention to
prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that
purpose an offence is committed of such a nature that its commission was a probable
15 consequence of the prosecution of that purpose, each of them is deemed to have committed the
offence. The accused before me set out in conjunction with her brother to assault the deceased in
the name of administering corporal punishment. The torture of the deceased was a probable and
foreseeable consequence of the prosecution of that unlawful purpose considering the nature of
weapons (the three sticks) which she handed over to her brother which her brother openly used to
20 assault the deceased.
It was the evidence of P.W.2 that at one point during the beating, the accused asked his brother
to stop the beating. Thus raises the possibility of the defence of voluntary abandonment.
Abandonment or withdrawal is an affirmative criminal defence that arises when an accused
25 asserts that he or she never completed, or was not involved in, a criminal act because he or she
abandoned or withdrew from the act prior to it happening. The defence succeeds when the
accused shows that he or she stopped participating in the crime prior to its ultimate commission
and either that any actions undertaken by the accused prior to abandoning the crime did not
contribute to the successful completion of the crime or that the accused notified the police of the
30 planned crime as soon as possible in order to attempt to prevent the crime from taking place.
Abandonment can occur when an accused is participating in a crime with other co-criminals and
10
decides to no longer participate, however, the abandonment should occur before the commission
of the offense and not during its commission.
For example in People v. Brown, 90 III. App. 3d 742, the accused was found guilty of attempted
5 burglary, the trial court sentenced the accused to a term of four years' imprisonment. On appeal,
the defence argued that the conviction should be reversed because the evidence established that
the accused voluntarily abandoned his criminal activity and purpose. The accused formed an idea
to rob car dealership, and his friends agreed. The accused acted as the lookout while his friends
kicked in door but had not gained entry. After kicking in door, at this point the accused and
10 another became scared and notified the rest that they were abandoning the plan. As the group
was leaving the parking lot of the service station next to the car dealership, the police arrived and
stopped them. The court held that voluntary abandonment would have been excuse to the
substantive crime, but he was still guilty of attempt that occurred prior to it.
15 In the instant case, carrying the three sticks to the accused was an act of support that had a
substantial effect on the perpetration of the crime. Her attempted abandonment was not made
before but during the commission of the offense. Until that point, she had not only given
substantial assistance or encouragement to her brother in the commission of the crime, but she
had also shared the intent of the brother. She is thus criminally responsible both as a co-
20 perpetrator and as an aider and abettor.
In the final result, I find that the prosecution has proved all the essential ingredients of the
offence of Torture c/s section 4 (1) of The Prevention And Prohibition of Torture Act, 2012
beyond reasonable doubt and I hereby find the accused guilty and convict her for the offence of
25 Torture c/s 4 (1) of The Prevention And Prohibition of Torture Act, 2012.
Dated at Luwero this 8th day of February, 2018. …………………………………..
Stephen Mubiru
Judge.
30 8th February, 2018
11
8th February, 2018
11.45 am
Attendance
Mr. Senabulya Robert, Court Clerk.
5 Ms. Beatrice Odongo, Resident State Attorney, for the Prosecution.
Mr. Katamba Sowali, Counsel for the accused person on state brief is present in court
The accused is present in court.
SENTENCE AND REASONS FOR SENTENCE
10 The convict was found guilty of the offence of Torture c/s section 4 (1) of The Prevention And
Prohibition of Torture Act, 2012 after a full trial. In her submissions on sentencing, the learned
Resident State attorney Ms. Beatrice Odongo prayed for a deterrent sentence on the following
grounds; although the convict has no previous criminal record of conviction and has been on
remand for three years, being an auntie to the deceased she should have acted in a manner
15 protective of the victim. She acted to the contrary which led to a loss of life. Her conduct wasn't
in line with her role as an Auntie. She proposed a deterrent custodial sentence of six years'
imprisonment.
Counsel for the convict Mr. Katamba Sowali prayed for a lenient sentence on the following
20 grounds; the convict had a family and was looking after the family. P.W.1 the mother of the
convict said she had forgiven her. Her mother is in the evening of her life. She suffered a double
tragedy; the offence was committed by her daughter and son. He suggested that the period spent
on remand be found adequate. The sentence should enable her to return and look after her elderly
mother. He this proposed that she is fined. In her allocutus, the convict prayed for forgiveness.
25 She has three orphans and they have no grandmother, uncle or other relatives on their father's
side. She prayed for forgiveness since she did not intend to commit the offence.
Under section 4 (1) of The Prevention And Prohibition of Torture Act, 2012, the maximum
punishment for the offence of Torture is fifteen years or a fine of three hundred and sixty
30 currency points or both. However, this represents the maximum sentence which is usually
12
reserved for the worst of the worst cases of Torture. In light of the fact that the convict incurred
mainly accessory liability, I have for that reason discounted the maximum sentence.
I have nevertheless considered the aggravating factors in this case being; the level of torture
5 inflicted on the victim. He was a young boy who ought to have been protected by the convict.
Accordingly, in light of those aggravating factors, I have adopted a starting point in the range of
three to five years’ imprisonment.
I have considered the fact that the convict is a first offender, a young woman with considerable
10 family responsibilities, her contrite demeanour throughout the trial and the victim impact
statement of her elderly mother made during her testimony. A long term of imprisonment will
only add misery to an already tragic situation, and may not serve any useful penal purpose. I
have further considered the more or less accessory role she played in the commission of the
offence and the fact that at some point in the course of administering corporal punishment to the
15 child, she made an attempt to stop him. Although the latter aspect is not a defence and failed as
such, it provides an extenuating circumstance for purposes of sentencing.
In accordance with Article 23 (8) of the Constitution and Regulation 15 (2) of The Constitution
(Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, to the effect that
20 the court should deduct the period spent on remand from the sentence considered appropriate,
after all factors have been taken into account, I note that the convict has been in custody since
19th June, 2014, a period of three years and seven months. Having taken into account that period,
I therefore sentence her to “time served” and she should be set free upon the rising of this court
unless she is being held for other lawful reason.
25
The convict is advised that she has a right of appeal against both conviction and sentence within
a period of fourteen days.
Dated at Luwero this 8th day of February, 2018 …………………………………..
30 Stephen Mubiru
Judge,
13
8th February, 2018.
14
