JURISDICTION ON CRIMINAL PROCEDURE NOTES IN TANZANIA

JURISDICTION ON CRIMINAL PROCEDURE NOTES IN TANZANIA

Criminal jurisdiction is the power which the sovereign authority of a state has vested in the court and other tribunals established by law to determine questions which arise out of crimes committed in that state. In other words, criminal jurisdiction is the power vested in courts to hear and determine criminal cases.

Before proceedings commence in any case the question which arises is whether the offence committed is triable within the territorial jurisdiction of Uganda and if so which court has power to hear the case. (for example s.4  of the PCA CAP 120 the jurisdiction of the courts of Uganda extends to every place within Uganda except for cases of treason committed by a Ugandan citizen or person ordinarily resident in Uganda).

Laws Applicable

The Magistrate Court Act cap 16.

The Trial on Indictments Act cap 23.

The Penal Code Act cap 120

The Magistrates’ Courts (Amendment) Act 2007

The Penal Code (Amendment) Act, 2007

The Magistrates Courts (Magisterial Areas) Instrument, 2007

There are three aspects of jurisdiction which include

1.                       Territorial jurisdiction

2.                       Local jurisdiction

3.                       power to try cases

Territorial Jurisdiction

The first question which needs consideration is whether the court has territorial jurisdiction.

S.4 of the penal code act cap 120 lays down the extent of the jurisdiction of the courts of Uganda. The general rule under that section is simply that the jurisdiction of the Ugandan courts is confined to crimes committed within the territory of Uganda. This section however has a few exceptions stipulated under s.23-27 of the penal code. Treason, acts intended to annoy the person of the president, concealment of treason, terrorism, promoting war on chiefs, etc…

It should be noted however that under international law, there is no restriction on the competence of the court to prosecute its own nationals for crimes committed outside its territorial jurisdiction if this right to national jurisdiction is conferred by statute. (National jurisdiction).

Uganda vs Mustapha Atama 1975 HCB 254

In this case, the accused a Kampala business man was charged in the chief magistrate’s court with obtaining money by false pretence contrary to section 9 of the PCA cap 106.

The prosecution alleged that the accused while in the Republic of Zaire obtained shs 3360/- from the charge-d’ affaires of the Ugandan embassy by falsely pretending that he required the money for the maintenance of eight Ugandan soldiers who were stranded in Zaire while on an official mission.

The question was whether Ugandan Courts had jurisdiction over the matter as the offence had been committed in the Republic of Zaire, though in Uganda’s own embassy.

Holding.

Where as the state is competent to prosecute its own nationals for offences committed abroad on the basis of nationality, however exercise of jurisdiction on the basis of nationality is not automatic, but municipal courts must be enabled to do so by legislation.

Section 6 of the PCA confers jurisdiction to the courts of Uganda to try offences that are committed partly within and partly without Uganda. In the absence of law enabling Ugandan courts to try cases committed wholly outside Uganda, the nationality principle will not apply.

Local Jurisdiction

After it has been established that the alleged offense was committed within the territorial boundaries of Uganda, the next question will be whether the alleged offence was committed within the local limits of the jurisdiction of the court.

The general rule is that every offence must be tried by a court within the local limits of the jurisdiction where it was committed under s.31 of the MCA cap 16. what does it say?

Section 32 MCA provides that should the accused person be found outside the area in which the offence was committed, the court in whose local limits of jurisdiction he is found will have him brought before it and cause him to be removed in custody to the court having jurisdiction to hear the offence. i.e, the offence is committed in mbale and the fugitive is in masaka, the court in masaka will hand him over to the mbale court which has local jurisdiction over the offence that was committed by the accused.

Where the offence is committed partly within and partly without the local limits of jurisdiction, any court having jurisdiction in either the two places may hear the case. Read out s.37 of the MCA.

For example if property is stolen in Kampala and received in masindi, a case on a charge of theft or receiving stolen property may be tried either in kampala or masindi.

3.       Power to try cases.

Even where an offence is committed in Uganda within the territorial boundaries and is committed within the local limits of jurisdiction of a particular magisterial area, the judicial officer handling the case will still have to ask him self the question whether he has powers to try the case, or whether the court he presides over, has jurisdiction to hear the case.

For example; The Anti Terrorism Act No 14 of 2002 section 6, provides thus;

The offence of terrorism and any other offence punishable by more than ten years imprisonment under this act are triable only by the highcourt and bail in respect of those offences may be granted only by the Highcourt.

This means that the highcourt and only the highcourt has powers to try the offence of terrorism under the Anti terrorism Act.

(Constitutional petition no 18 of 2005;- Uganda Law Society vs The A.G and The Republic of Uganda).

There are three grades of magistrates in Uganda according to section 4(2) MCA cap 16 as amended by S.1 of The Magistrates’ Courts (Amendment) Act 2007. The post of Magistrate Grade II was abolished by the amendment Act of 2007.

HIERACHY OF MAGISTRATES

The chief magistrate Highest

The magistrate Grade I,& II.

The powers and jurisdiction of a magistrate are determined by the grade of his or her appointment and the powers and jurisdiction conferred upon that grade by the MCA.

POWERS OF A CHIEF MAGISTRATE.

The original jurisdiction of a chief magistrate’s court is governed by section 161 (1) (a) MCA. A chief magistrate may try any offence other than an offence in respect of which the maximum penalty is death. Examples of these are murder, treason, rape, aggravated robbery, etc…

Sentencing powers of a chief magistrate

A chief magistrate may pass any sentence authorised by law under section 162(1) (a) MCA. This means that he can pass a maximum sentence of imprisonment for life and can impose a fine of any amount.

I.E ATTEMPT TO COMMIT RAPE S.125

Appellate jurisdiction.

A chief magistrate hears appeals from decisions of magistrates Grade II and III. This is provided for under section 204(1)(b) MCA.

MAGISTRATE GRADE I

POWERS OF A MAGISTRATE GRADE I

A magistrate Grade I may try any offence other than an offence in respect of which the maximum penalty is death or imprisonment for life. This is stipulated under section 161 (1) b) MCA. I.E ABDUCTION 126.-7 years.

Sentencing powers of a magistrate grade I

Under section 162 I) b) MCA, as amended provides that a magistrate grade I may pass a sentence of imprisonment for a period not exceeding ten years or a fine not exceeding Four million, Eight Hundred Thousand Shillings or both.

In the case of Uganda vs Nicholas Okello (1984) HCB 22

The charge in this case was for attempted defilement contrary to section 123 (3) pc cap 106 of which the maximum sentence was 18 years imprisonment. The magistrate grade I tried this offence and sentenced the accused to 18 years imprisonment. He appealed against sentence and conviction. It was held that the magistrate had no powers to try such offence and therefore the trial was a nullity.

MAGISTRATE GRADE II

POWERS OF A MAGISTRATE GRADE I

The magistrate grade II may try any offence under any written law other than the offences and punishments specified in the first schedule of the MCA. Section 161 (1)c) MCA

The sentencing powers of a magistrate grade II are limited to imprisonment for a period not exceeding three years or a fine not exceeding half a million shillings. S. 162 (1) c) MCA.

In the case of Uganda v c. Kiwanuka [1979] HCB 210.

In this case the magistrate grade II tried the accused of an offence brought under the fire arms act, which was an offence stipulated under the first schedule to the MCA to which a magistrate grade II had no powers to try.

It was held that the conviction of the accused and sentence imposed on him by the magistrate grade II in disregard of the provisions of the first schedule was illegal.

Read; Constitutional petition 18 of 2005 ULS vs A.G and republic of Uganda on the issue of jurisdiction.

MAGISTRATE GRADE III

POWERS OF A MAGISTRATE GRADE III.

S.1 of The Magistrates’ Courts (Amendment) Act 2007 abolished the grade of Magistrates Grade III

CRIMINAL JURISDICTION OF OTHER COURTS.

Art.129 of the constitution gives a list of the courts of judicature in Uganda and these are;

a)         The supreme court of Uganda

b)         The Court of Appeal of Uganda

c)         The HighCourt of Uganda

d)         Such subordinate courts as parliament may by law establish

Jurisdiction of the Supreme Court.

The supreme court of Uganda is a superior court of record and a final court. It doesn’t have original jurisdiction like the High court but only has appellate jurisdiction, meaning that it hears appeals from the court of appeal. (Court of Appeal rules, directions 1996), art. 132(2) of the constitution.

Jurisdiction of the Court of Appeal.

It has appellate jurisdiction and hears appeals from decisions of the High court. Art. 134(2)

It also has powers to hear cases or petitions regarding any question as to the interpretation of the constitution. Art. 137. it is a constitutional court.

Jurisdiction of the Highcourt

Art 139(1) confers on the High court unlimited original jurisdiction in all matters with such appellate and other jurisdictions as may be conferred on it by the constitution or any other law.

s.1 T.I.A  cap 23 provides that the high court has jurisdiction to try any offence under any written law and may pass any sentence authorised by law.

EXCEPT, that no criminal case can be brought under the cognisance of the High court for trial unless the accused person has been committed for trial to the highcourt in accordance with the MCA.

Sentencing powers of the High Court

Under section 2 of the T.I.A, the highcourt may pass any lawful sentence combining any of the sentences which it is authorised by law to pass.

Appellate Jurisdiction.

The Highcourt hears appeals from decisions of the chief magistrate and magistrate grade I. section 204 (1) a) MCA.

Structure of the Military Court System/Court Martial.

Does the General Court Martial have concurrent jurisdiction with the High Court which is seized with unlimited original jurisdiction under Art. 139 (1) of the Constitution?

Art.129 of the 1995 constitution reads

129 (d) such subordinate courts as parliament may by law establish. The GCM derives its jurisdiction from an Act of parliament, the UPDF Act 7 of 2005 but not directly from the constitution. Does this make it a subordinate court?

In Constitutional Petition No 6 0f 2004 Tumushabe Joseph Vs Ag, the GCM was held to be subordinate to the High Court.

In accordance with the mandate under article 210 of the constitution, to regulate UPDF, parliament enacted the UPDF act and created the GCM under s. 197(2) of the UPDF Act.

The Field Court Martial is the highest court- not permanent but constituted when necessary.

There are also division court martial

The General Court Martial

Court Martial Appeal Court

Below are unit disciplinary committees that are seized with jurisdiction to try and determine various types of offences with the exception of serious ones like murder, robbery and rape.

When looking at the structure of the Military courts, there is no doubt they are special courts compared with the ordinary civil courts, referred to as courts of judicature envisaged under art.129(1) of the constitution.

Looking at the GCM, appeals from that court go to the Court Martial Court of Appeal court and appeals from that court go to the Court of Appeal of Uganda and not the High Court and eventually to the Supreme Court.

They deal with different fact situations. - Court martial courts are not courts of judicature but military courts. Unlike the other special courts like Industrial court, Tax Appeals Tribunals and Npart, decisions from the GCM are not appealable to the High Court but to the Court Martial Court of Appeal.

 Is the GCM subordinate to the High Court?

END

CRIMINAL PROCEDURE

CLASS NOTES FOR LL.B III-2009

EXTRADITION

The Law applicable is the Extradition Act Cap 117.

This is an aspect of jurisdiction which deals with the process of surrendering a fugitive offender from the surrendering country (Uganda) to the country where he committed the offence known as the requesting country for the purpose of having him/her tried and sentenced for that offence.

Extradition in Uganda is governed by the Extradition Act cap 117.

It should be noted that extradition can only be demanded pursuant to an extradition treaty between the two states i.e the requesting state and the surrendering state. There is no legal obligation to extradite in the absence of a treaty or an agreement between the states.

Lk at section 4(1) on application to commonwealth countries or section 4(2) it applies to any other country with which a reciprocal arrangement exists with Uganda.

s.5 on discontinuance; where the arrangement ceases to exist under s.4, the minister may by statutory instrument, discontinue the application of the act to that country.

Who is a fugitive criminal for purposes of the Extradition Act?

s.1 c) defines a fugitive criminal as any person accused or convicted of an extradition crime within the jurisdiction of any other country who is in or suspected of being in Uganda.

What is an extraditable crime?

Question:

Suppose an extradition agreement exists between the two countries, would this make the extradition automatic?

Under the extradition act cap 117, it is important first to establish if the offence is actually extraditable or not. An Extraditable crime under section 28 of the Act is a crime which if committed within the jurisdiction of Uganda, would be an indictable offence described in the schedule to the act. For example, criminal homicide and similar offences, abduction, rape, defilement, bigamy, etc… theft is not an extraditable offence.

a)      must be indictable in Uganda if committed there. i.e it must be an offence under our laws- chewing gum on the street is not an offence in Uganda but it is in Singapore… so Uganda would not extradite a Singaporean or any other fugitive for having chewed gum while on the streets of Singapore.

(not to flush after use of a public restroom)

b)      it must be an offence described in the schedule to the Act. It may be an indictable offence in Uganda but not described in the schedule. i.e theft. (zzimwe case theft of money from the bank).

RESTRICTIONS ON SURRENDER OF CRIMINALS.

What restrictions are there on the surrender of fugitive criminals by Uganda under the extradition Act?

Under section 3 of the Extradition Act,

a)                  a fugitive criminal shall not be surrendered if the offence in respect of which his or her surrender is sought is one of a political character or if it appears to the court or the minister that the requisition for his or her surrender has in fact been made with a view to try or punish or her for an offence of a political character;

b)                  s.3 b) provides that the fugitive criminal shall not be surrendered unless it is proved that there exists a law or arrangement in the country seeking his surrender that he shall not, unless he or she has been restored or has had an opportunity of returning to Uganda be detained or tried in that country for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded.  I.e it must be proved to Uganda that once the fugitive is extradited, he shall only be tried for the offence for which the extradition was sought and granted. (If they come up with any other offence then the criminal must be given an opportunity to be returned to Uganda)

c)                  s.3 C) provides that if a fugitive criminal is being accused for having committed an offence in Uganda, not being the offence for which his or her surrender is sought, or is undergoing sentence under any conviction in Uganda, he shall not be surrendered until after he or she has been discharged either by acquittal or by expiration of his sentence

d)                  finally under section 4 d), a fugitive criminal shall not be surrendered by the Ugandan authorities until the expiration of fifteen days from the date of his or her being committed to prison to await his or her surrender.

N.B            Almost all the extradition treaties also adopt the double criminality element meaning that an act or offence for which extradition is sought should be criminal in both states. Lk at s.28 extraditable crimes.

Who can be extradited?

s.1 c) a fugitive criminal- any person accused of an extraditable crime committed outside Uganda

Secondly, s.7, every person who is accused or convicted of;

a)      counselling- to counsel is to advise someone into committing an offence, s.19(1)d) PCA, same punishment as the person who actually commits the crime. It must be proved that it was the offence counselled that was actually committed and not a different one.  Rv saunders and Archer saunders desiring to kill his wife so as to marry another woman consulted with archers who advised him to put poison in an apple which was then to be given to his wife. The wife after taking a bite from the apple handed to their child who ate it and died of poison…

b)      Procuror- Blakely and Sutton v Dpp added vodka to her boyfriend’s tonic water.

c)      Aidder and abettor- presently assisted and encouraged a person to commit the offence Rv Bourne

d)       Accessory after the fact- assist the fugitive to evade justice by habouring him or her at your house

All the above categories of persons will be liable to extradition if the conditions in s.3 and s.4 are proved.

PROCEDURE FOR THE SURRENDER OF CRIMINALS UNDER CAP 117.

A)    Under section 8(1) of the E.A a requisition for the surrender of a fugitive criminal who is in or suspected of being in Uganda shall be made to the minister by a diplomatic representative or consular officer of that country. (ambassador) which minister? Justice minister- attorney general.

B)     The minister upon receipt of the requisition will signify in writing to a magistrate informing him or her that a requisition has been made and will require the magistrate to issue a warrant for the apprehension of the fugitive criminal. (a magistrate in this case refers to a chief magistrate or a magistrate grade I) s.8(2)

C)      However where the minister is of the opinion that the offence of which the fugitive is being requested is one of a political character, he may refuse to make an order and may order the magistrate to have the criminal discharged from custody. S.8(3)

PROCEDURE OF ISSUING A WARRANT OF ARREST AGAINST A CRIMINAL.

A warrant of arrest against a fugitive criminal may be issued by magistrate under the following circumstances;

1)                  s.9 1 a) on the receipt of orders of the minister, under s.8(2)or

2)                  on such evidence as would in his opinion justify the issue of a warrant if the crime had been committed in Uganda. (i.e, where a complaint has been lodged and such evidence produced that shows that a crime was committed outside Uganda)

3)                  s.9(2) a magistrate who issues a warrant of arrest without the orders of the minister shall be required to send a report of the facts, together with the evidence and complaint to the minister who may order for the cancellation of the warrant if dissatisfied with the evidence.

4)                  S.9(3) a fugitive criminal who is apprehended on a warrant must be produced before a magistrate within twenty-four hours.

WHAT IS MEANT BY AN OFFENCE OF A POLITICAL CHARACTER UNDER S.3 a) OF CAP 117?

How do you determine whether a particular offence is of a political character?

According to section 3a) a fugitive criminal shall not be surrendered if the offence in respect of which his or her surrender is demanded is one of a political character.

Section 23 further states that the minister shall not transmit a requisition and or endorse a warrant if the offence is one of a political character.

The Extradition Act doesn’t define the expression political character but the definition of an offence of a political character can be borrowed from a number of old English cases.

In Re Castioni (1891) 1 QB 149

Castioni was a swiss who escaped from Switzerland into England after shooting one Rossi a member of the government of the canton. Castioni shot and killed Rossi during an uprising

where a number of government officials were arrested because the citizens of canton were dissatisfied with the manner in which the government was being run. Castioni and others broke into the armoury, seized arms and went on a rampage. They went straight for the municipal palace, broke it open and entered. Rossi who was standing in one of the corridors of the palace was shot and killed by Castioni who then escaped to England where extradition proceedings started against him.

Castioni’s solicitor argued that this was an offence of a political character and that the shooting was incidental to and formed part of a political disturbance. His lawyer further argued that Castioni had no political motives and that he had done the shooting simply to gratify his personal malice.

It was held that Castioni was an active participant in a political uprising and that the shooting was done in the furtherance of the aim of getting rid of a government.

It should be noted that not everything that is done during the period of a political uprising can be said to be of a political character.

According to Hawkins J, the expression “political character” means incidental to or forming part of a political uprising.

In R v Meunier (1891) 1 QB 149

The accused was an anarchist in france. He was charged there with wilfully causing two explosions killing two people in a café and another at a military barracks after which he escaped to England where extradition proceedings were started against him and he was arrested. It was argued that the incident at the café was not an offence of a political character. The question to be answered was whether the incident or the attack at the barracks amounted to an offence of a political character.

It was held that in order to constitute an offence of a political character, there must be two parties in a state, one struggling to impose a government of its own over the other and the offence must have been committed in pursuance of that objective. Meunier’s conduct didn’t fall within this description.

Question

Kony attempts to murder the vice president of Uganda while in Newyork. He flees the country and takes refuge in Sweden. The United States government then institutes extradition proceedings against Kony in a Swedish court. In your view, do you think Kony’s lawyers would successfully raise the defence of the offence being of a political character against the extradition proceedings?

In Cheng v the governor of Pentoville Prison (1973) 2 WLR 746

The accused had been convicted in Newyork of the attempted murder thereof of the vice president of Taiwan. While on bail pending sentence, he fled the country and went to London where the American government initiated proceedings for his extradition. Cheng argued that the offence was one of a political character and therefore not an extradition crime.

This argument was refused by the divisional court and it was held on further appeal that this wasn’t an offence of a political character because the offender had not been taking political action against the American government. It was further stated that the American government was not concerned with its relation with Taiwan asking for extradition. The American government was merely concerned with the enforcement of its American criminal laws.

HEARING OF CASES AND EVIDENCE.

After a warrant of arrest has been issued, the magistrate will go ahead to hear the case in the same manner and with the same powers and criminal jurisdiction as he would have exercised in a case committed within Uganda. S.10

The magistrate must receive and hear all the evidence which may be tendered to show that the crime of which the prisoner is accused is an offence of a political character or is not an extradition crime. S.10 (2)

After the magistrate has determined that the crime is an extradition crime, and has also proved that the foreign warrant is duly authenticated, then the magistrate will commit the fugitive criminal to prison to await the warrant of surrender from the minister. (s.11)

The minister shall then send a report on the case and a certified copy of the warrant of apprehension to the minister for his perusal.

The magistrate shall then be required to inform the fugitive that he will not be surrendered until the expiration of fifteen days and that he or she has a right to apply for an order of habeas corpus.

Upon the expiration of the fifteen days, the minister shall if no other orders are made, may by warrant order the fugitive criminal to be surrendered to such person duly authorised to receive the fugitive. S.12 (2)

If the fugitive criminal is not surrendered and conveyed out of the country within two months after the committal, any judge of the high court may order that the criminal be discharged out of custody unless sufficient cause is shown to the contrary. S.13.

CRIMINAL SUMMONS

A criminal summon is a simple court document that contains a number of facts justifying an inquiry into a complaint against an accused person and requiring him to attend the inquiry. In other words, it is a document, issued by the court to be served on the person addressed in it, requiring that person to appear before court on the date specified in the document to answer charges brought against him/her.

Forms and contents of a criminal summons.

According to section 44 (1) of the MCA, every summons must be in writing, prepared in duplicate, signed and sealed by the magistrate or such other officer as the chief justice may from time to time direct.

s.44(2) every summons must be directed to the person summoned and shall require him or her to appear at a place, date, time indicated therein before the court having jurisdiction to inquire into and deal with the complaint or charge.

s.44(3) a summons must also state shortly the offence with which the person against whom it is issued is charged. This is basically for purposes of letting the accused know and prepare for the charge he is being compelled to answer.

Service of Summons

Service of summons to accused personally

According to section 45 (1) MCA, every summons must be served by a police officer or an officer of the court issuing it or any public servant but in practice, a summons is served by a police officer or an officer of the court called a process server. A summons must be served onto the person to whom it is addressed personally but the section states, if practicable.

The summons is served on the accused by giving him a duplicate of the summons and in practice he must sign the original copy of the summons. S.45(2) MCA provides that every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt of it on the back of the original summons.

Service of summons when person/accused cannot be found.

Sometimes it may not be possible after the exercise of due diligence to serve the accused personally, in which case service of the summons may be effected by leaving the duplicate of the summons for the accused with an adult member of the family or the accused’s servant who normally resides with him, or by leaving it with his employer.

The person with whom the summons is left, if so required by the process server, must sign receipt of it on the back of the original summons.

Look at section 46 MCA.

Where the person summoned cannot, by the exercise of due diligence be found, the summons may be served by laving the duplicate for the person with some adult member of his or her family or with his or her servant residing with him or her or with his or her employer; and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt of it on the back of the original.

Procedure when service cannot be effected.

s.47 MCA, if service in the manner provided by sections 45 & 46 of the MCA cannot by the exercise of due diligence, be effected, the serving officer shall affix the duplicate of the summons to some conspicuous part of the house or home stead in which the person summoned ordinarily resides, and thereupon the summons shall be deemed to have been duly served.

SERVICE OF A CRIMINAL SUMMONS ON A COMPANY.

It is common knowledge that in law a body corporate is a legal person criminally liable except in certain cases, to the same extent as a natural person. For this reason, provision has been made for compelling a body corporate to answer charges against it in a court of law.

According to section 49 of the MCA, service of summons on an incorporated company or other body corporate may be effected by serving it on the secretary, local manager or other principal officer of the corporation or by registered letter addressed to the chief officer of the corporation or by registered letter addressed to the chief officer of the corporation at the registered office of the company or body corporate in Uganda.

Service of criminal summons on a body corporate can be done by sending the summons by registered mail addressed to the chief officer of the company, secretary, local manager or other principal officer of the company. These officers of a company are deemed competent to plead on behalf of the company.

Proof that service was effected.

Where may a summons be served?

Under section 50, a summons may be served at any place in Uganda. So sometimes it may be necessary to prove that a summons was served especially

a)         where the summons was served outside the local limits of jurisdiction of the presiding court

b)         if the accused for whom the summons was intended does not appear at the place, date, and time indicated, the court might either on its own or upon application by the prosecution decide to issue a warrant for his apprehension.

But before the court does so, it will be necessary to show by evidence that the accused was served and had deliberately refused to obey the summons.

Under section 51 of the MCA, ordinarily proof of service of summons shall be given by calling the process server to give evidence on oath that service was effected. But where the officer is not present or the summons was served outside the local limits of the jurisdiction of the issuing magistrate, proof may be effected by the person with whom the summons was left, swearing an affidavit before a magistrate and presenting the original summons duly endorsed in the manner described above.

Even if the original summons is not endorsed, the affidavit shall be admissible in evidence if the court is satisfied from the statements made in it that service of the summons has been effected properly. S. 51(2) MCA.

From what has been discussed above, under what circumstances will an original summons not be endorsed?

THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATE’S COURT OF MPIGI AT MPIGI

CRIMINAL CASE NO 72 OF 2007

UGANDA------------------------------------PROSECUTION

VERSUS

K. DDUMBA---------------------------------------------------ACCUSED

AFFIDAVIT OF SERVICE

I JJ WILFRED of Ms. Firm A & Co. Advocates P.O. Box 7062,Kampala do solemnly swear and state on oath as follows:

1. That I am a process server of all courts of judicature and this Honourable Court, working with Ms. Firm A & Co. Advocates.

2. That on the 23^rd day of February 2007 I received a criminal summons serving upon K. Ddumba the accused in this matter.

3. That on the 29^th day of February, 2007 I proceeded to the accused’s place of residence at Wamala village Ngando Butambala, a place well known to me.

4. That on reaching the accused’s place I found there his son who identified himself to me as Asuman Ddumba and son to the accused.

5. That I asked him for the father but he told me that he was not aware of his whereabouts since he had just returned from School where he takes his studies. He however suspected him to have gone to Ngando town.

6. That I ordered a Boda Boda man one Rashid to take me Ngando town but upon reaching Nganda, I didn’t find the accused.

7. That I ordered the Boda Boda man to take me Bulo town and it was on our way to Bulo that I met the accused at a lady’s place of residence identified to me by the Boda Boda man, as Hajjati Nazziwa alias Mrs. Kagga.

8. That we stopped and I branched off to Hajjati Nazziwa’s home from where I served the accused with a copy of the summons.

9. That on service the accused told me that he was advised by his children not to appear before court.

10. That I asked him to sign on my original summons which he refused and instead he pleaded to me not to mention that I ever met him any where for service of the same.

11. That I left him with the duplicate copy of the summons and returned with the original un signed.

12. That I swear this affidavit as proof of service of the summons in this matter.

13. That what is stated is true to the best of my knowledge.

SWORN BY THE SAID

J.J WILFRED at Kampala this                                            …………………………………….

…………day of……………………………2007                                          DEPONENT

BEFORE ME

………………………………………………

COMMISSIONER FOR OATHS

ARRESTS

Meaning of Arrest.

An arrest is the deprivation of liberty for the purpose of compelling a person to appear in court or other authority to answer a criminal charge or to testify against another person. It usually involves the taking of the person arrested in custody whereby he is detained or confined.

Every individual in Uganda has a constitutional protection as to personal liberty enshrined in the Bill of rights. Arresting a person therefore means interfering with his personal liberty. Therefore, a person will not be deprived of his liberty save as may be authorized by law.

Method of Arrest.

Section 2(1) of the CPC provides that in the making of an arrest the police officer making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

If such a person forcibly resists the endeavor to arrest him or attempts to evade  the arrest, such police officer or other person making the arrest may use all means necessary to effect the arrest. However, there is an important proviso qualifying the use of force to the effect that nothing contained in this section 2 of the CPC shall be deemed to justify the use of greater force than is reasonable in the circumstances in which it is employed or is necessary for the apprehension of the offender. S.2(2) & (3) of the CPC.

In other words, only reasonably necessary force is allowed to be used in order to effect an arrest. Excessive or unwarranted force is unlawful. In otherwords, there is no need to touch the person being arrested if he agrees to go with the person effecting arrest without resistance or argument.

It is even unnecessary to handcuff or tie him if he behaves himself and intends to cause no trouble.

Under section 5 of the CPC, it is provided that a person arrested should not be subjected to more restraint than is necessary to prevent his or her escape. The late Ayume in his book gave an example of a police officer who comes across a young lad trying to steal a tyre from a motor vehicle at Nakivubo mews and asks the lad to follow him to the Central Police Station and he willingly agrees to go without any danger of his escaping, there is no need to handcuff him and push him around. It is unlawful and unnecessary to assault a person who is already in custody.

Note:

Where any person is charged with a criminal offence arising out of the arrest or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested the court should, in considering whether the means used were necessary or the degree of force used was reasonable for the apprehension of such person, have regard to the gravity of the offence which has been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.

Before use of force is employed, the arresting person should take into account the seriousness of the offence committed and the manner in which it was committed. If the offence is grave and violence is involved, the arresting officer may be justified to use deadly force like a firearm to arrest the offender, or prevent him from escaping.

SEARCHES WITH OR WITHOUT A WARRANT

Law applicable.

The Criminal Procedure Code Act cap 116

The Police Act cap 303

The Magistrate’s court Act cap 16

Definition of a search.

A search may be defined as an inspection made on a person or in a building for the purpose of ascertaining whether anything useful in criminal investigation may be discovered on the body of the person or in the building searched.

A search is carried out for the purpose of collecting evidence and exhibits which may be used in a criminal trial. A search may be carried out in anyplace whether it be within premises or outside, or in a vehicle.

Normally searches are carried out on the authority of search warrants issued by the court, but police officers are empowered to search without a warrant in certain cases.

SEARCH OF ARRESTED PERSONS.

A police officer has power to search any person who has been arrested and to take possession of anything found on such a person which might reasonably be used as evidence in any criminal proceedings. S.6 (2) of the CPC.

Whenever a person is arrested without a warrant, by a private person under a warrant, and the person arrested cannot be released on bail, the police officer making the arrest or the re arrest has power to search such a person and place in safe custody all articles other than necessary clothing, which are found on him.

A police officer or any person making the arrest has power to seize any offensive weapons found with an accused person. S. 9 CPC

Whenever it is necessary to search a woman, the search must be carried out by another woman with strict regard to decency. S.8 CPC and s. 23 (2) of the police Act.

Search of Premises of Arrested Persons.

When a police officer has reason to believe that material evidence can be obtained in connection with an offence for which an arrest has been made. Or of the person for whom the warrant of  arrest has been issued, and he has power to seize anything which might reasonably be used as evidence in any criminal proceedings. (s.69 MCA). If the person to be arrested enters any building or place, the arresting officer or person has power to enter the premises and search them. (S.3(1) CPC)

Power to stop and search persons and vehicles.

Any police officer has power to stop, search or detain any vessel, boat, aircraft or vehicle where he has reason to suspect that anything stolen or unlawfully obtained may be found. A police officer has similar powers in respect of any person who may be reasonably suspected of having in his possession or conveying in any manner any thing stolen or unlawfully obtained. The police officer is authorized to seize such thing. S.7 CPC.

SEARCH WITH A SEARCH WARRANT.

A search warrant is written authority given by a court ordering the search of the premises, place, or vessel named in the warrant for the purpose of seizing anything therein which is required or material in the investigation of an offence.  In other words, a search warrant is an authority to search a place for evidence of a crime which is suspected or believed to have happened. The two main reasons why it may be necessary to search a place are, to make an arrest and second, to obtain evidence.

A search warrant must be signed by the magistrate issuing it, and must bear the seal of the court. S.56(1) and s. 74 MCA. Every such warrant remains in force until it is executed or until it is cancelled by the court which issued it. S. 55(3) MCA.

The direction in the search warrant must be strictly observed. The person to whom it is directed is not supposed to seize articles which are not mentioned in the warrant unless such un named articles are likely to provide additional evidence as to the identity of such articles, or which at least, have some relevance in the charge against the accused person.

Thus the seizure of irrelevant articles is not only legally unjustified but may damage the prosecution’s case. In order to prove that the articles seized were from the accused, it is necessary to prove the contents of the warrant.

In Mohanlal Trivedi v R

The appellant was convicted of being in possession of property reasonably suspected of having been stolen and failing to give a satisfactory account of his possession. The police searched the house and shop of the appellant for a camera. Although they didn’t find the camera, they found an exposure meter which was the subject matter of the charge. On appeal it was contend among others that the conviction ought not to stand as no search warrant was produced and there was no evidence to show that the appellant’s house and shop were the buildings named in the warrant. The prosecution failed to prove the contents of the warrant because of their failure to produce it in evidence.

Power to issue a search warrant.

If it is proved on oath to a magistrate that anything which is necessary to the conduct of investigation into any offence is in a building, vessel, carriage, box, the court has power to issue a search warrant authorizing the person to whom it is directed to search such place for such a thing. The place to be searched for is found, the person carrying out the search is empowered to seize and carry it to the court which issued the search warrant or some other court to be use as an exhibit. S. 70 MCA

Execution of search warrants.

A search warrant may be directed to one or more police officers or chiefs named therein or generally to all police officers and chiefs. However where the immediate execution of search warrant is necessary and no police officer or chief is available, the issuing court may order any other person to carry out the search. Where a search warrant is directed to more than one officer or person, it may be executed by all or any one of them. S. 58 MCA

A Search warrant directed to a police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed. The position is the same as regards chiefs. S. 60 MCA.

Every search warrant may be issued and executed on a Sunday. It must be executed between the time of sunrise and sunset, although the court has power to authorize the police officer or other person to whom it is addressed to execute it at any hour. S. 71 MCA.

Search of Closed Places.

Whenever any building or other place liable to be searched is closed, any person residing in or being in charge of such building must, on demand of the officer or person executing the search warrant, and on production of the warrant, allow him free entrance and exit from the building. The person in charge of the building is also required to afford the person searching all reasonable facilities for the search. S.72 (1) MCA

If entrance or exit is not allowed, the person executing the warrant is authorized to break in or break out of the building. S. 71(2) MCA and s. 4 CPC.

If any person is found in or near the building to be searched , and is reasonably suspected of concealing on his body any article for which search should be made, such person may also be searched. If the person is a woman, she must be searched by a woman. S. 72(3) MCA and s. 23(2) of the CPC.

Detention of Property seized.

When anything is seized and is brought before a court, it may be detained until the conclusion of the case or the investigation. Reasonable care must be taken for its preservation. S. 73(1) MCA.

If any appeal is made, or if any person is committed for trial, the court must order it to be further detained for the purpose of appeal or the trial. S. 3(2) MCA. If no appeal is made, or if no person is committed for trial, the court must direct such thing to be restored to the person from whom it was taken, unless the court sees fit, or… authorized, to dispose of it otherwise. S. 72(3) MCA.

SEARCHES WITHOUT A SEARCH WARRANT.

Under s. 7 of the CPC, a police officer is authorized without a search warrant to stop, search or detain a vehicle, vessel, or aircraft, if he has reason to suspect that it contains stolen property or property un lawfully obtained. In any way he can stop and search any person and seize any property found on him

s. 7 (1) of CPC provides;

Any police officer may stop, search or detain any vessel, boat, air craft o r vehicle in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found and also any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained, and may seize such thing.

The application of this section is called into question when a police officer after stopping and searching, proceeds to charge the person searched with an offence under s.300 of the penal code act. On a charge under this section, the prosecution must satisfy the court that there was reasonable suspicion before the vehicle or person was stopped and searched.

In other words, suspicion must precede the stopping. Suspicion which may be reasonable, arising or manifesting itself after the stopping will not render the action of the police officer legal under section 7 of the CPC.

Read Kityo Vs. Uganda 1967 EA 23.

It should be noted that the power of stopping and searching under s.7 of the CPC is vested only in police officers. For example, chiefs would not be acting lawfully if they assumed to exercise powers under this section

Read Tenywa V Uganda 1969 EA 102.