The Court of Appeal of Uganda has pronounced itself on the law regarding convictions based on retracted confessions and nullified a 45 years-sentence for murder over the trial Judge’s failure to deduct the remand period as required under the Constitution of Uganda’s Article 23(8) and case law.
In a decision delivered on Friday, 9th August, 2024, in the case of Nyakaishiki Provia & 3 Others v. Uganda, the Court of Appeal however upheld the High Court’s conviction of the four appellants for the offence of murder but adjusted the nullified 45-years in prison sentence for each of the appellants and reduced it to 35 years for each one of them after the finding that the trial Judge did not deduct the 5 year period the appellants spent in prison prior to their conviction (remand) and also did not consider mitigating factors.
The Court of Appeal bench, comprised of the Deputy Chief Justice Richard Buteera, Justice Christopher Gashirabake, and Justice Oscar Kihika affirmed the legal principle in Tuwamoi v. Uganda (1967 EA 84) that while it is dangerous to rely solely on a retracted confession in the absence of corroborative evidence in a material aspect, a court can do so if it is fully satisfied as to the truth of the confession.
The 1st, 2nd, and 3rd Appellants had argued that the trial Judge was wrong to convict them based on their retracted confessions because they made the confessions involuntarily and were forced to sign ‘documents’ by the Police that they did not understand upon refusal to give the police officers a bribe.
“The position of the law as set out by the above [case] has not changed. Before a trial judge admits in evidence any confession that has not been admitted by the maker, he or she must be satisfied that the
confession had been voluntarily made by that accused person.” the Court of Appeal ruled.
The Court found that the trial Judge had conducted a trial in a trial in order to determine the admissibility of the appellants’ confessions in evidence and she found that the confessions had been been made voluntarily and were corroborative of each other so much so that the details given in the confessions could only have been given by someone who participated in the offence.
“The trial judge held a trial within a trial. In her ruling, she found that the confessions had been voluntarily made and that the details given could only have been known to someone who participated in the murder of the deceased. We have carefully read the confessions made by the 1st, 2nd and 3rd Appellants and found that the narration of the events that led to the murder of the deceased was so corroborative of each other that these statements could only have been made by persons that participated in the murder.” the Court of Appeal stated.
The Court of Appeal’s analysis further hinged on Section 27 of the Evidence Act, which allows confessions made by one accused to be considered against others accused of the same offense. Basing on this provision, the Court of Appeal upheld the conviction of the 4th Appellant upon finding that the voluntarily made confessions of the 1st, 2nd, and 3rd Appellants implicated him in the commission of the crime.
Regarding the sentence, the Court of Appeal found merit in the appellants’ argument that the trial judge did not clearly account for the five years they spent on remand.
Citing Article 23(8) of the Constitution of Uganda and the Supreme Court’s decision in Rwabugande Moses v. Uganda (Criminal Appeal No. 25 of 2014), the Court of Appeal affirmed the necessity of a demonstrably clear arithmetical deduction of remand time from the final sentence of an accused person.
The Court of Appeal also observed that stylistic differences in how a trial Judge or sentencing Judge indicates in his Decision that he took into account the period an accused person spent on remand are not sufficient grounds for the Court of Appeal to interfere with his sentence if there is clear evidence demonstrating that he made the deduction.
The Court relied on the Supreme Court authority of Abelle Asuman v. Uganda (Supreme Court Criminal Appeal No.66 of 2016), where the top court ruled that: “Where a sentencing Court has clearly demonstrated that it has taken into account the period spent on remand to the credit of the convict, the sentence would not be interfered with by the appellate Court only because the sentencing Judge or Justices used different words in their judgment or missed to state that they deducted the period spent on remand. These may be issues of style for which a lower Court would not be faulted when in effect the Court has complied with the Constitutional obligation in Article 23(8) of the Constitution.”
“From the above, it is clear that the guiding question in the resolution of this appeal is whether, from the style used by the trial Court, it clearly demonstrated that it has taken into the period spent by the appellant on remand to his credit. We think NOT. The sentencing order of the learned trial Judge was
made in passing and [was not] clear whether the 5 years the Appellants had spent on remand had been deducted from the sentence passed. In addition, the sentencing order of the trial Judge did not consider
the mitigating factors of the case. The trial Judge considered the aggravating factors in isolation of the mitigating factors of the case. We accordingly allow the appeal against sentence and set aside the
sentence of the trial Court.” The Court of Appeal stated.
Case: Nyakaishiki Provia & 3 Others v. Uganda Counsel: Ms. Madean Kemigisha (for the Appellants) and Mr. Sam Oola (for the DPP).
Benjamin Ahikiiriza is a legal writer and publisher of the Legal Reports Digital Media.