In order to sustain an indictment for murder, the prosecution has the burden to prove all the ingredients that constitute the offence
against the accused as follows:
That Batwawula (the deceased) died,
That the cause of his death was unlawful,
That the accused caused the death of the deceased, or participated in causing it, and
That he caused it with malice aforethought.
Regarding the death of the deceased, the prosecution relied on the evidence of PW2 who testified that one Ajambo, the mother of the
deceased summoned him to her home in the night of 6/04/04. When he got there he found the deceased who had been assaulted lying in
a pool of blood, and in a critical condition. He was informed that the accused was assaulted by the accused so he arrested him and
took him to local administration police at Kayango. When he returned to Ajambo’s home he found the deceased dead. Detective
Patrick Masete (PW1) testified that he was summoned to rescue the accused who was likely to beaten up by a mob and who was being
held at the local administration police. After seeing that accused was already safe in custody he proceeded to the scene of the crime
where he found the body of the deceased lying in a pool of blood inside a hut. This evidence was supported by the post mortem report,
which showed that the deceased died of excessive bleeding following deep cut wounds. Accused also agreed that the deceased died.
There is thus no doubt that the deceased died and I find that the prosecution proved this first ingredient beyond reasonable doubt.
Regarding the second ingredient, it is the presumption that all homicides are unlawful except where they occur in the due process
of law or where they are caused by accident. Article 22 of the Constitution of Uganda guarantees the right to life and it provides
that one should be deprived of life except in execution of a sentence passed by a court of competent jurisdiction in respect of a criminal
offence under the laws of Uganda and the highest appellate court has confirmed the conviction and sentence. According to the post
mortem report (Exh. P1) the death of the deceased resulted from excessive bleeding due to deep cut injuries that were not self-inflicted.
The inference from this finding is that the deceased was assaulted. The weapons likely to have been used were named in the post mortem
report to be a hoe and a pounding stick. Assault is an offence under the laws of Uganda and therefore unlawful. Since the defence
also conceded that the death of the deceased was caused unlawfully, find that the prosecution has proved the second ingredient beyond
As to whether the accused caused or participated in causing the death of the deceased, there was no direct evidence linking the assault
of the deceased to the accused. The prosecution relied on circumstantial evidence to prove this. The main piece of evidence was the
confession that was first made to PW1, the arresting officer and later to PW3, Detective Inspector of Police Messhack Mulobole in the processes of administering a charge and caution. The statement was admitted following a trial-within-a-trial as Exh.
P4. In the charge and caution statement the accused stated:
“I did not murder him but the deceased fought me, (sic) he found me preparing my super, (sic) he poured the white ants then
held me by the neck and beat me seriously, (sic) during the struggle to gain freedom, I got hold of a pounding stick (sic) which
I hit him on his legs,(sic) he fell down but still holding me and beating me,(sic) I struggled until I got hold of a hoe (sic) which
I hit him on his head and he released me.”
In his defence, the accused denied that he made this confession. He testified that the detectives had coerced the confession out
of him by use of force and intimidation. Mr. Niyonzima Vincent, Resident State Attorney invited court to treat this confession as
a retracted confession. Relying on the decision in the case of Kasule v. Uganda [1992-92] H.C.B. at 39, he submitted that a retracted confession would not normally be used to support a conviction unless it is corroborated by other evidence.
However, court might rely on it if it is fully satisfied in the circumstances of the case that the confession must be true. Mr. Niyonzima
added that in the circumstances the confession detailed how the circumstances unfolded, including offering a defence on the part
of the accused. He submitted that such a confession had to be true and it required no corroboration. But in the event that it did
require corroboration, he invited court to treat the prior confession recorded in the statement of the accused to PW1 as corroboration
to the confession.
Counsel for the accused, Ms. Birungi Monica, also invited court to treat the confession as retracted. She submitted that the evidence of PW1 should be treated as hearsay evidence and could not corroborate the confession. She contended that for the confession to be considered as evidence, it had to be corroborated by independent evidence other than that
The law on retracted and repudiated confessions was reviewed by the Supreme Court in Matovu Musa Kassim v. Uganda, SC Criminal Appeal No, 27 of 2002 where the accused had retracted a confession that he made immediately after arrest because he alleged it was not made voluntarily.
It was held, affirming the decision in Tuwamoi v. Uganda  EA 84 that:
"A trial court should accept any confession which has been retracted or repudiated with caution and must, before founding a conviction on such a confession, be fully satisfied in all circumstances of the case that the confession is true. The same standard of proof is required in all cases and usually a court will only act on the confession if corroborated in some material particular by independent evidence accepted by the court. But corroboration is not necessary in law and the court may act on a confession alone if it is satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true."
The case of Matovu Musa Kassim (supra) is almost on all fours with the instant case regarding the statement that was in contention. In that case, the learned Justices of the Supreme Court observed that the appellant made a detailed statement disclosing facts and events which only a person who was
an active participant and eye witness to much of what occurred on the night of the murder could have been familiar with. Though the
accused gave sworn evidence at his trial in which he repudiated the statement, a number of factors existed to discredit any claim
that in any way affected the facts and events he disclosed. Court therefore concluded that any claims that the appellant was framed
had no truth in them and up held the confession and the conviction that had been based on it.
I am fortified by the decision of the Supreme Court cited above and I do agree with Mr. Niyonzima that the statement of the accused
disclosed details that could not have been given by a person who was not a participant or eye witness of the events that took place
in Ajambo’s hut on the night that the deceased was assaulted. Because the accused was telling it all as it had happened, he
was so convincing that he even offered the defence that he only hit the deceased because he was defending himself from an attack.
There is no other conclusion that can be drawn from the surrounding circumstances, that the confession cannot be but true. There is therefore no doubt that it can be used as a basis for conviction of the accused.
In the event that there is any doubt as to the truth of the confession the doubt would still be resolved against the accused in this
case because there is other evidence on record which corroborates the circumstances in the confession other than the testimony of
PW1. During the trial-within-the-trial, the accused testified that the beatings that were inflicted upon him by the detectives in
order to extract the confession resulted in injuries to his left eye and loss of sight in that eye. On the other hand, PW3, DIP Mulobole
testified in the same trial that on administering the charge and caution, he observed that the accused had injuries. He testified
that accused had bruises on his face and another injury on his finger. According to PW3, the accused informed him that he got the injuries during the fight with the deceased.
The accused was examined and PF 24 filled after his arrest. The findings on PF 24 that was filled at Bugiri hospital on 8/04/04,
barely two days after the incident, show that at the time of his examination the accused had “healing wounds right orbital, neck region and a swollen right hand.” These injuries are consistent with the struggle between the accused and the deceased that was described in the charge and caution
statement. In the statement the accused disclosed that the deceased got a hold of him by the neck. This explains the finding in the
report that the accused had “scratch wounds behind the neck.” The swollen right hand is explained by accused’s report to PW1 that during the struggle, the deceased got a hold of his hand
and twisted it or turned it down causing his pain. The accused then retaliated by getting a pounding stick with which he hit the
deceased. These circumstances disclosed to PW1 and the doctor’s findings on examining the accused corroborate the contents of the confession in the charge and caution statement.
The accused’s testimony that he was beaten up by the investigating officer as he extracted the confession from him is therefore an after thought and a pack of lies. It contradicts the instructions that accused gave to counsel who disclosed to court that the
accused had informed her that the contents of the statement where true and that accused had narrated them to the police officer.
It also contradicts his prayer during the course of the trial to plead to the lesser charge of manslaughter. The accused would have
had court believe that he was tortured brutally by PW1, Masete. He testified that Masete hit him with a baton on the head several
times and he bled from the nose and the eye. He described the baton as a hard stick the size of his arm that had a lump at the end.
It is inconceivable that the accused could have been hit several times on the head with such a weapon and not sustained injuries (most likely concussion) and/or collapsed from such beating.
Regarding his participation in the offence, the accused raised an alibi. In his testimony the accused claimed not to have been at the scene of the crime. That defence was negatived by the fact that the confession
put him squarely at the scene of the crime. The wounds he sustained during the fight with the deceased corroborated his confession.
By the foregoing, the defence of alibi is negatived.
I am therefore fully satisfied in all circumstances of the case that the confession as adduced in the charge and caution statement was true. By virtue of his own confession, the accused was placed at the scene of the crime and he did have a fight with the deceased, which led to the serious injuries that resulted in his death. On the basis of the confession, I find
that the prosecution has proved the third ingredient beyond reasonable doubt.
The final ingredient that the prosecution had to prove to sustain the indictment is malice aforethought. Malice aforethought has been broadly defined in s.191 of the Penal Code Act. It is there provided that malice aforethought shall be deemed to be established by evidence proving an intention to cause the death of any person whether such person is the person
actually killed or not; or knowledge that the act or omission causing death will probably cause the death of some person whether
such person is the person actually killed. It does not matter that such knowledge is accompanied by indifference whether death is
caused or by a wish that it may not be caused. From this definition, malice aforethought is a state of mind, which cannot be established
from direct evidence, but which can be inferred from the circumstances of the case at hand.
The formula above became law after the decision in R v. Tubere  12 EACA 63. In that case and subsequent case, courts have consistently held that malice aforethought can be inferred from the nature of the weapon
used, the part of the body targeted, the manner in which the weapon was used, and the conduct of the accused before, during and after
In the instant case, the prosecution relied on the weapons used to inflict the injuries and the part of the body that was targeted to infer that there was malice aforethought. According to the post mortem report, the accused had gush wounds on the occiput (part of the head) and on the legs. In his confession the accused stated that he hit the deceased with a hoe on the head. On the basis of these criteria, the prosecution
invited court to find that malice aforethought had been proved beyond reasonable doubt.
Counsel for the accused submitted that there was no evidence to show that the actions of the accused where premeditated; no evidence
was brought by the prosecution to show that there was a prior arrangement or threats made by the accused to kill the deceased. It
was also submitted that the accused had not run away from the scene of the crime so that guilt could be inferred from such action.
Counsel for the accused thus submitted that malice aforethought had not been proved beyond reasonable doubt by the prosecution and the accused could not therefore be convicted of murder.
In addition, counsel for the accused submitted that in his confession the accused stated that he had been forced to hit the deceased with a hoe because deceased attacked him and held him by the neck. The accused added
that after he hit him with a pounding stick on the legs, the deceased fell down but he continued holding onto the legs of the accused
who was trying to run away to avoid imminent danger. She drew that attention of court to the evidence of PW1 that there was evidence of a violent struggle between the accused and the deceased in the hut where deceased’s body was found. Counsel then prayed that in the circumstances court should find that the defence of self-defence is available to the accused and convict him of manslaughter instead of murder.
The law on the defence of self-defence was discussed in U v. Dic Ojok [1992-1993] HCB at 54 where the elements of the defence where laid down. Court was of the opinion that there are four factors that could be said to constitute
There must be an attack on the accused,
The accused must as a result have believed on reasonable grounds that he was in imminent danger of death or serious bodily harm,
That accused must have believed it necessary to use force to repel the attack upon him,
The force used by the accused must be such force as the accused believed on reasonable grounds to have been necessary to prevent or
to resist the attack; but in determining whether the extent of force used by the accused was reasonably necessary, regard must be had to all the circumstanced
of the case.
There is no doubt that the force that the accused used in this case – hitting the accused with a hoe was excessive. Although
the deceased had at the onset of the fight gotten a hold of the accused’s neck, when the deceased hit him with a pounding stick
on the legs, the deceased fell down. Deceased was not armed and he was on the ground. The immediate danger to the accused’s life had been reduced had it not been for the deceased’s continued clutching onto his legs to prevent accused from making an escape. This in the view
of the accused necessitated use of more force to get the deceased to release his legs so that he could escape. It will be remembered that the initial attack on the accused was vicious. The deceased grabbed him by the neck and perhaps threatened
to strangle him. The scratch marks recorded in the medical exam report on the accused Exh. P2 attests to this.
In U v. Dic Ojoc (supra) it was held that although a person who is attacked in circumstances where he reasonably believes his life is in imminent danger is entitled to use force, even deadly force to repel the attack, the determination that the person is placed in such a situation where he must use force to protect his life is one of fact that depends
on the circumstances of a particular case. Court concluded that the person would not be availed the defence of self-defence if there
are no reasonable grounds upon which he based his belief that the force used was reasonably necessary to repel the attack.
In the instant case, the fact that the accused tried to disengage and run away from the deceased after he hit his legs and he fell
to the ground deserve closer examination because it is his reaction after he removed the imminent danger and the accused’s
response to it that would determine whether the accused needed to use more force to repel the attack. In U v. Ojoc (supra) court found that although a person faced with imminent danger of death may use such force as he reasonably believes necessary in the circumstances, he must evince a willingness to temporise or disengage and perhaps to make some
physical withdrawal. If the opportunity to avoid conflict exists and instead force is resorted to, this may be used to determine
whether the force used was reasonably necessary in the circumstances.
I find that the circumstances in which the accused was placed, with the deceased who had previously threatened to strangle him clutching onto his legs to prevent his escape, could have caused the accused to lose all sense of reasonable action. His immediate response was to get the deceased to release him
at all costs. He got the nearest weapon that he could find to achieve this and unfortunately, the hoe was the nearest that he could
use. As was held in U v. Dic Ojoc (supra) the person in danger of a violent attack “is not expected to weigh to a nicety the exact measure of the defensive action since it is known that fear, pain and surprise can
physiologically so change a person as to literally take him out of his normal self.”
I therefore find that the instant case can be distinguished from that of U v. Turwomwe  HCB 15 which was cited by the learned Resident State Attorney to support the submission that malice aforethought is inferred where the accused
hits the deceased with a deadly weapon such as a panga in a vulnerable part of the body like the neck. In the instant case, though the accused hit the deceased on the head with a hoe,
he had been placed in a situation where he was afraid for his life. He could not in the circumstances start considering which part of the deceased’s body to disable. He had already tried the legs and the deceased continued to
fight him, in fact to prevent him from making his escape from the struggle and imminent danger to his life.
The assessors in this case gave a joint opinion. They opined that on the basis of the evidence that had been adduced before this court,
the accused killed the deceased but he did not do so intentionally. I agree with them. In the end result, I find that the prosecution did not prove malice aforethought beyond reasonable doubt. The accused was clearly trying to defend himself and unfortunately ended up killing the deceased. The defence of self defence shall therefore be availed to him. The accused is therefore acquitted of murder and is instead convicted of manslaughter.
Irene Mulyagonja Kakooza