Masereka v Uganda (Criminal Appeal 5 of 1991) [1992] UGSC 12 (18 December 1992)

## at mengo

CORAM: MANYINDO, D. C. J., PLATT, J. S. C. & SEATON, J. S. C.

# CRIFIHAL An HAL NO, g OF 1991

## BETWEEN

masereka alias kapukba ::::::::::::::: :::: APPELLANT •

AND

# UGANDA . :::::: RESPONDENT

(Appeal against conviction and sentence of a High Court decision hclden at Fort Portal (Mrs Justice L®E®M® Mukasa-Kikonyogo)

### IN

### HIGH COURT CRIMINAL CASE NO. OF 1990

#### JUDGMENT OF COURT

Tho Appellant was convicted on two counts, the first of murder contrary to Section 183 (1) (a) of the renal Code Act, and secondly of kidnapping with intent to murder contrary to Section 255(1)(a) of the Pe'nal Code Act> and sentenced to death on the first count, the sentence on the second count having been postponed® The Appellant now appeals®

The appeal concerns throe train issues, the first taken by this Court io whether it is possible to convict a person of murder as well as of kidnapping with intent to murder, the victim in both counts being the came® A sub issue would be whether the lack of medical evidence would enable tho Court to convict of murder® The second main issue is whether the evidence of identification was safe to rely upon® .. On this issue there are several sub issues taken up in the memorandum of appeal® The third main issue ia whether there was a failure of justice vitiating the trial because the Appellant was

2/....

denied representation during the summing up to the Assessors.

On the first issue, it is clear that on principle if murder has bean carried out, then kidnapping has been exceeded, the latter offence being complete before'murder has been committed# charged was that Oilasi Ei^angara had been kidnapped with the intent to place. It may well be that death may have taken place in certain circunstances after the kidnapping, but being obscure or perhaps committed by other persons, that then kidnapping becomes the only certain charge, at which time death has not yet occurred. It may also be that some namely that ha has been abducted with the intent to murder him; and then murder. On the other hand if the murder is doubtful it would be proper to charge murder in the firac count and kidnapping in an alternative Count. persons may bo guilty of kidnapping whilst others are guilty of murder. But once a person is kidnapped by one person or a group of persons; The kidnapping as murder him or may be 50 disposed of as to be put in danger of being have murdered. It is a ch rgc where the death of the victim must not/taken that intent is carried out and the victim is murdered, it is plain that 'V the kidnapping is the prelude to the murder, and the proper charge is

In this case, v/e treat the two Counts in the alternative. There is good reason for that approach, because it is clear that the victim was found dead on the evening of 1Jth February 19&5\* A post mortem It There was a period of about two hours between the tine that the escaped from the .kidnap.ers taking away his father, and the time that his father was found dead. How the deceased met his death is not known. J/—. was carried out the next day, but all the records have been lost, where is not known who,, or, /the Doctor might be. son.- of the victim alleged that he

<sup>2</sup> *-*

In those circumstances it was proper for the count of kidnaPtins to have been charged in the. alternative to the Count of Murder\*

why he found that the circurastantial evidence led inevitably to the Appellant having murdered the victim Silaai Kisangara, it safe to conclude that that fact was proved beyond reasonable doubt® We do not dispute that the witnesses may prove den th witnout medical opinion in proper caooo\* cogent case for that conclusion to be drawn, due to the lapse of some twenty five years from the incident to the time of the trials the death of indiepondont witnesses, the loss of all medical records and the fact that tho prosecution relied solely on the evidence of the two sons of the victim who may n-t have been entirely independent® While we have borne in mind all that the learned Judge explained, we do not fin< Jut this, we feel, is not a sufficiently

We hold. therefore, that the conviction of the Appellant on the first Count is unsafe and it is quashed and tho sentence of death Passed upon it sot aside\* Jith this conclusion we understood that the learned State Counsel was in<sup>w</sup> agreement\*

We pans °n to the second Count as an alternative to the Count of Murder\*

On thio Count, Counsel for the Appellant has pressed the following considerations\*

The facto put forward by Koloneli Kisangara (P\*W\*J) were briefly that he had been at the !:cme of his father Silasi Kisangari and his mother, when a group of arr.'.od men camo to their home abducted Silasi and took him away against his will. Koloneli himself evaded arrest because he escaped and hid in u banana plantation some forty metres away\* It was around *h* p\*cu The Appellant was armed and was pushing the victim forward, as the gang took the victim away\* Koloneli asserted **v....**

- *5* -

that he knew the Appellant as u trader at Isanga trading centre.

- *!i* -

The evidence of Cition Kasereke Kisangara (r. W.4) was to the effect that between 3 P\*m. and 4 p.m. he had been at Isanga trading centre when came and arrested him. APongst the group was "Kapwaba" the Appellant who actually arrested him, and indeed, the Appellant was the only person whom the witness knew\* Tho group arrested the witness because as a There, the group divided and the Appellant and others left, leaving some other persons to guard this witness. The Appellant and his party later returned bringing with them the victim Silasi Kisangara (the father of the witness)\* The victim was tied. Father and son and another person Atanasio were led up into Buier. era Mountain. On the way, Simon Kasereke (P.y.4) and the other roan escaped because they were not tied. It was then between *5* p.m. and 6 pirn. school teacher he had refused to go to teach the R^enzururu people. The witness agreed to go and he was taken to his home. *a* group of people armed v;ith spears, knives, ropes and sticks

Sometime between 6 p.m. and *7* p.m. one Xudowa, now dead, spread the news to Kolonoli and Kasereke that their father's dead body had path in the Kiountain. went up the mountain and found the body of their father. It was brought home. The next \*.ny the body was taken to Euhinje Hospital for post mor tec. examination. been found on a The sons of Silasi, the victim,

co the ''Police Kpond.vo 4 The The family moved away to katwe because of the deceased'n death. Kasereke agreed that he had gone He did not relate Kasyango's part. to Buhinje hospital v;i -i "the body. **' A** body was brought back and buried. Kolonoli stated Chat the mailer was re.ort'd Customs" by one Kasyango. • g-ru asport was given the family to take the deceased to Buninje Hospital#- Kasereke carried out chat task.

\$

5/.

But Kasereke said that one Atanasiyo reported to the Uganda Army in that area, and that the Army had gone with the family to find the body\*

It ia not known what happoned to Kasyango or Atanasiyo\* latter had been arrested with Kasereke and escaped with his\* These were important witnesses# Kasereke had died before the trial\* had been made at the ''Police Mpondwe Customs", or the Uganda Array# ? The The wife of Silasi and mother of Koloneli and ? It is not known to whom reports

Centre, when the armed rcen of the Rwen^ururu Movement came there\* He had run away with the others, (a general reaction reported by Kasereke, although he had said that the Appellant was one of the Movement)\* The Appellant's defence was that he had indeed been at the Trading

He was asked to Kasose Police Station\* He again denied knowing about Kisangara's death# Jrd July 1966 he was charged with murder\* A year later again he was released on 3°th June 1967 for lack of evidence of some sort\* The Appellant says thnt the Chief Magistrate observed Nineteen years later he was arrested at Mpondwe market viz on 26th June 1986\* He has been in custody ever since\* market\* if ho knew Kisangara which he denied\* On 3°th June 19o5> the Appellant said that he had come to Mpondwe The Gombolola Chief -ted his soldiers arrested him\* On 2nd July 1965 he was brought that he had "no case to answer\*" A year later, on

If the Magistrate had really said that there was no case for the Appellant to answer, it night be that the Appellant had been acquitted# It may be that the charges were withdrawn which the Appellant also says that he was told\* It is not clear which way it went\*

This was a very important defence\* There does not appear to be unusual turn\* moved to Katwe that they could not be traced\* any reason why between 1965 and 1967 the proceedings took such an It may be, of course, that as the deceased's family But it is also possible

that there had been no record of identity of any certainty\*

- 5 -

The possibility that the Appellant had not been recognisedi or that the witnesses had not left any complaint against him with the Police at Mpondwe or the Uganda Army, cannot bo ruled out# The witnesses\* indeed, are vague as to what report they did Bake, if any# rely only on Atanasiyo or Kasyango?\* basis the Gombolola Chief acted four months after the incident# Did they V. Thus it is not clear on what

that a first report held that:\* It is an old established rule of obvious fundamental merit, the authorities should be put in evidence# For example in Rex Vs Eohamed bin -Albin (19^2)9 E\*A\*C. A\* 72, it was

> "in every case in which there is to the identity of the accused, the "fact of there having been a description given and the terms of that description are matters of the highest importaneo of which evidence ought always to be given\*" a question as

It should be given by the person who made the report and then by the person to whom the report was made# It was still the rule in R V Turnbull (1976)JA11 E\*R\* 5^9<sup>1</sup> Cr# Appeal Reports 1J2\*

a decision whether tho identification was mistaken or sound\* We can only express surprise that such evidence was not adduced by the prosecution either in chief or in rebuttal# This salutory rule is the foundation of the inquiry leading to

Looking at the directions to the Assessors and by the Judge to himself, we are not satisfied that this matter received sufficient attention\* We doubt whether the issues were put in proper perspective It was barely mentioned to the Assessors\* There is no sention of it in the judgment\* Certainly, the Appellant was said to have been known before (the Appellant appears to have denied that by implication); certainly he had been in the trading centre that day; but had he been a leader of the gang or had be run away with other people who also escaped? Had he been a ringleader, is it likely that he would not

7/

have been prosecuted? Kurderjhad allegedly occurred\* If the Appellant There is too great an element Of chance in this case for the conviction to stand\* It may be that the prosecution was hampered by the Passage of time\* That does not help their case\* The risk of an old vendetta being raised<sup>v</sup> without any check at all is too great to allow the conviction to proceed\* The Government was intent on putting down the Rwenzururu Movement\*^/ had redlly been known would he not have been prosecuted?

Consequently we allow the appeal, quash the convictions and set aside the sentences\* The Appellant is ordered to be set at liberty forthwith unless held for any other lawful cause\* circun-In th\*se stances we need not deal with the regrettable slip of not having the Dated at Mengo this <«.<«.• Appellant's defence lawyer presept for the summing up\* day of v2?-^C.1992.

*V* S. T. Manyindcxv

Deputy Chief Justice

*/Mu*

H. G. Platt Justice of the Supreme Court

/ *I*

Hon. Hr\* Justice Seaton is now deceased.