Uganda v Alou Kawa (Criminal Revision No. 4-1/90) [1990] UGIC 1 (3 December 1990)

Full Case Text

# ms REPUBLIC OF UG/JIDA

## Iff THS MAGISTRATES COURT OF ADUKU

### CRIMINAL RWISIO1T ITO. 4-1/90

### UGANDA g § g g g g g g g g g g g g g g PROSECUTOR

## VRS,

ALOU KAWA s 8 : g g g *i* ? s ? g s 2 § g s ACCUSED

## BEFOREg THE HON, UR, JUSTICE G. X 0K3LL0

# REVISION ORD'JR NO. 4l/90s

This filo is from Aduku Magistrate\* s court. It was sent to this court by tho Chief Magistrate of Lira for confirmation of sentence under section 167 of the MCA\*70, The -Accused, was convicted on two counts of imputation of witchcraft contrary to section 4 of the witchcraft Act, He was sentenced to three years imprisonment with exclusion order for ton years,

attracts A sentence of three years imprisonment confirmation of sentence under section 167 of the MCA.170, So the file was placed before mo for confirmation the sentence. On perusal; I was of the view that the convictions were improper as they were not supported by the evidence on record. Secondly the record shows that despite the two counts; the accused was sentenced only in one count though he was convicted on both. On those premises I declined to confirm the sentence and resolved to make a revision order. So I directed that the file bo sent to the DPP for the his views.

The accused was charged on two counts with imputation of witchcraft contrary to section 4 of the witchcraft Act. The particulars of tho offence in count 1 alleged that 1-1-89 at Ayibi village; Apac District the accused imputed witchcraft to Ajok thereby causing her death. In count 2; the particulars alleged that on 22/1/89 at Ayabi village; Apac District the accused imputed witchcraft to Agonga thereby causing his death

In order to establish tho offonoe under the above section, the prosecution has to prove beyond reasonable doubt that the accused imputed the use of witchcraft to a named person to a person not in authority and that as a result of that imputation tho named person has thereby suffered harm.

In tho instant caso, tho evidence on record do not disclose the offence of imputation of witchcraft. Thoy are totally irrelevant to tho offence charged# The evidence on record instead show that the accused was found in possession of four herbs.

It is trite law that unless there is an amendment, the prosecution is bound by the particulars of tho offence charged. They must prove beyond reasonable doubt all the essential ingredients of tho offence charged to obtain a conviction.

Even if tho offence of being in unlawful possession of articles used in practising witchcraft contrary to section 5 0) of the witchraft Act wore to bo considered, in the light of tho evidence on record, tho evidence still fall short of proving the same. There is no evidence to show that the herbs were articles used in practising witchcraft or that they are by common repute, or belief articles which are used for tho purposes of witchcraft. It is true there was evidence to show that the accused had a reputation of being a witch but this alone is not enough.

The evidence on record further show that at one time the accused called a witch Doctor to his home and the witch doctor removed from tho accused's home at night and secrotly some herbs. But still it is not clear from the evidence whether tho witch doctor was called for evil purpose. It is the duty of tho prosecution to prove tho guilt of an accused\*

Whon tho relevant filo was returned from tho DPP, I noticed that ITandawula Betty a State Attorney writing for the DDP in hor letter Rofs 6/4/2 of 3rd Decombor 1990 was of tho view that tho conviction was bad because it was not supported by tho evidence on record. Sho had no objection to the Revision ordor being made and does not wieh to be hoard in the event of tho Rovisional order being made.

*l\s* statod above, the convictions in 130011 counts are bad bocauso the evidence on record do not provo tlio essential ingredients of the offence charged. They are totally irrelevant to the charge . In fact they disclose the commission of no offence under the witchcraft Act. Consequently they can not properly be allowed to stand. Hence thoy are quashed.

It is an established principle that omnibus sentence is bad in law\* Whore an accused has been convicted on two or more counts, he must be sentenced on each of these counts and an order.should bo made whether tho sentences shall run concurrently or consecutively. Generally where an accused is convicted of two or more offences which are founded on the same transaction the order should be for tho sentences to run concurrontly.

In the instant case, the accused was charged with two counts of imputation of witchcraft but there was only one sentence. This is wrong. Sentences should h<?vo been reflected in both counts.

However since the convictions are quashed, the sentence is also set aside. Tho accused is ordered to be released forth with unless he is being hold on some other lawful ground. For similar reasons tho convictions im-

- (1) Revision order No. 44/90 (Aduku Cr. case No. 127-8/89 Uganda v. Margaret Apok. - (2) Revision order Mo. 43/90 (Aduku Cr. Case Nos. 124 6/89' Uganda v" Joseph Okello.

Are also quashed and tho sentences and exclusion orders are set aside The accusods in all these cases are ordered to be released forth with unless thoy are being hold on somo othor lawful ground.

GJI. OKTLLO JUDGIo

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