ISLAMIC UNIVERSITY IN UGANDA

FACULTY OF LAW
LAW 1102
CRIMINAL LAW II
Lecture materials
Note: (Students are advised and encouraged to read more materials in relation to these
topics).
OFFENCES AGAINST PERSONS

Non-Fatal offences

Common Assault. S. 235 PCA

It’s an offence provided for under section 235 of the Penal code Act Cap 120. A person is guilty
of an offence if he or she unlawfully assaults another. According to the case of Fagan v MPC
[1969] 1Q.B. 439, the House of Lords set the definition of assault as:

"An assault is committed where the defendant intentionally or recklessly causes the
victim to apprehend immediate unlawful personal violence."

An assault is when someone makes another person fear the use of immediate force against them.
This could be a raised fist, or running a finger across a throat. Physical contact is not necessary
for common assault to take place. From the definition if Fagan’s case, the elements of assault
would include;

1. Intention or recklessness to cause apprehension

Assault requires intent, meaning that there has been a deliberate, unjustified interference
with the personal right or liberty of another in a way that causes harm. In assault, intent is
established if a reasonable person is substantially certain that certain consequences will
result. It is also established whether or not the person actually intends those consequences
to result. E.g Pointing a gun at someone's head is substantially certain to result in
apprehension for the victim.

In criminal law, intent means acting with a criminal or wrongful purpose. The definition
in Fagan’s case points to acting "purposely," "knowingly," "recklessly," or "negligently."
Acting negligently means to grossly deviate from the standards of normal conduct. Some
criminal assault statutes recognize only "purposely," "knowingly," and "recklessly" as the
level of intent required to establish that an offense occurred.

In Logdon v DPP [1976] Crim LR 121 the defendant, as a joke, pointed a gun at the
victim who was terrified until she was told that it was in fact a replica. The court held that
 the victim had apprehended immediate physical violence, and the defendant had been at
least reckless as to whether this would occur.

2. The conduct of the accused should cause immediate apprehension of imminent harm

The victim must have a reasonable apprehension of imminent injury or offensive contact.
This element is established if the act would produce apprehension in the mind of a
reasonable person. Apprehension is not the same as fear. Apprehension means awareness
that an injury or offensive contact is imminent.

In Smith v Superintendent of Woking Police Station [1983] Crim LR 323 the

defendant had terrified a woman occupying a ground floor flat by staring in through the
windows at her. The Divisional Court was satisfied that even though the defendant was
outside the building there was evidence to suggest that the victim was terrified by the
prospect of some immediate violence. It was not necessary for the prosecution to
establish precisely what the victim feared would happen; a general apprehension of
violence was sufficient.

Whether an act would create apprehension in the mind of a reasonable person varies
depending on the circumstances of each case. For example, it may take less to create
apprehension in the mind of a child than an adult.

Moreover, if a victim is unaware of the threat of harm, no assault has occurred. An

assailant who points a gun at a sleeping person has not committed an assault. Finally, the
threat must be imminent, meaning impending or about to occur. Threatening to kill
someone at a later date would not constitute an assault.

In Tuberville v Savage (1669) 2 Keb 545 the defendant placed his hand on his sword
hilt and told the victim, "If it were not assize-time, I would not take such language from
you." This was held not to be an assault. The words accompanying the action (of placing
the hand on the sword) clearly demonstrated that because the assize judge was in town,
the defendant was not going to use his sword. There could thus be no apprehension of
immediate force.

3. Threat must be unlawful

There will be no assault where the threat is not unlawful. For example;

 Reasonable punishment of a child.

 Where the victim consents.

 Where the accused acts in self- defence or prevention of a crime.

In R v Arobekieke [1988] Crim LR 314 a train was stationary at a train station. The
appellant peered into a railway carriage looking for the victim. The victim was fearful of
the appellant and jumped out of the carriage and started to run off. He was electrocuted
when he stepped onto a live rail. He was convicted of constructive manslaughter and
appealed.

The appeal was allowed and the manslaughter conviction was quashed stating that whilst
the victim did apprehend immediate unlawful personal violence, the appellant's actions
did not constitute an assault. There was thus no unlawful act.

NB

It’s should be noted that the requirement of immediacy in the crime of assault is generally
understood to mean that the victim must perceive the threat as one which can be carried
out "there and then" by the accused. The courts have on several occasions however, given
a somewhat liberal interpretation to the concept of immediacy in assault.

What is clear is that words will not constitute an assault if they are phrased in such a way
that negatives any threat that the defendant is making. Therefore, no words or singing is
equivalent to an assault. It is often cited as authority for the proposition that words alone,
unaccompanied by physical gestures, cannot amount to an assault. See R v Meade and
Belt (1823) 1 Lew. C.C. 184 the defendants surrounded the victim's house singing
threatening and menacing songs.It was held that no assault was committed. Holroyd J
stated;

"no words or singing are equivalent to an assault"

However, the House of Lords recently stated that an assault can be committed by words
alone in Burstow R v. Ireland, R v. [1997] UKHL 34

The case against Ireland was that during a period of three months in 1994, he harassed
three women by making repeated telephone calls to them during which he remained
silent. Sometimes, he resorted to heavy breathing. The calls were mostly made at night.
He caused his victim to suffer psychiatric illness. The judge sentenced him to a total of
three years imprisonment.

The issue before court was whether psychiatric illness may amount to bodily harm and
that whether the conduct of Ireland was capable of amounting to an assault.

The court concluded that repeated telephone calls of a menacing nature may cause
victims to apprehend immediate and unlawful violence. Court further stated that;
 “The silent caller intends by his silence to cause fear and the victim is assailed by
uncertainty about his intentions. Fear may dominate her emotions, and it may be
the fear that the caller's arrival at her door may be imminent. She may fear the
possibility of immediate personal violence. As a matter of law the caller may be
guilty of an assault: whether he is or not will depend on the circumstance and in
particular on the impact of the caller's potentially menacing call or calls on the
victim”.

Assault occasioning actual bodily harm, S. 236 PCA

What constitutes actual bodily harm has been developed through case law. To make out the
offence, the prosecution must show that there has been an assault, and that the assault has
resulted in actual bodily harm. Once again, there must be an intention to assault (mens rea) and
the assault must have taken place (actus reus). Under section 236, there need not be any
apprehension of violence but it’s important that unlawful violence has been inflicted upon the
body of another person.

In Fook, R. v [1993] EWCA Crim 1 the Court of Appeal pointed out that actual bodily harm
does not have to be permanent or be serious. It is some actual harm which interferes with the
comfort of the individual for the time being, described as any hurt or injury calculated to
interfere with the health or comfort of a person. An assault that also causes a hysterical or
nervous condition is capable of being an assault causing actual bodily harm.

The phrase "actual bodily harm" was greatly considered in the case of Fook Chan where the
court emphasized that words should be given their ordinary. The word "harm" is a synonym for
injury. The word "actual" indicates that the injury (although there is no need for it to be
permanent) should not be so trivial as to be wholly insignificant. Section 2 of the PCA is in line
with the definition where harm means any bodily hurt, disease or disorder whether permanent or
temporary.

The element of mens rea in the offence of assault occasioning actual bodily harm is satisfied by
proving that the accused had the intention or recklessness as to assault.

In R v Roberts [1971] EWCA Crim 4 Court of Appeal a young woman aged 21 accepted a lift
from the defendant at a party to take her to another party. She had not met the man before and it
was 3.00 am. The defendant drove in a different direction to where he told her he was taking her
and then stopped in a remote place and started making sexual advances towards her. She refused
his advances and he drove off at speed. He then started making further advances whilst driving
and she jumped out of the moving car to escape him. She suffered from concussion and cuts and
bruises. The defendant was convicted of actual bodily harm. He appealed contending that he did
not intend or foresee a risk of her suffering actual bodily harm from his actions and that he did
not foresee the possibility of her jumping out of the car.
It was held that there is no need to establish an intention or recklessness as to the level of force.
It is sufficient to establish that the defendant had intention or was reckless as to the assault.
Where the victim's actions were a natural result of the defendant's actions it matters not whether
the defendant could foresee the result. Only where the victim’s actions were so daft or
unexpected that no reasonable man could have expected it would there be a break in the chain of
causation.

It should be noted that the distinction between common assault and assault occasioning actual
bodily harm is the degree of harm. If no harm occurs a charge cannot be sustainable.

Grievous Bodily Harm. S 219 PCA

Under section 219 the PCA, any person who unlawfully does grievous harm to another commits
a felony and is liable to imprisonment for seven years. The prosecution must prove the
following:

1. Did grievous bodily harm to the complainant.

2. The doing of the grievous bodily harm was unlawful.

Under section 2 (f) PCA, Grievous harm means any harm which amounts to maim or dangerous
harm, or seriously or permanently injures health or which is likely so to injure health, or which
extends to permanent disfigurement, or to any permanent or serious injury to any external or
internal organ, membrane or sense.

In Uganda v Pampara (1991) HCB 16 the accused, a teacher subjected the complainant who
was a student to corporal punishment. The Medical doctor who examined the complainant found
injuries of the eye. The court held that the actions of the accused amounted to grievous harm
taking into account the part of the body that was injured i.e. the organ that is responsible for
sight.

It should be noted that the resulting injury to constitute grievous harm or not is a question of fact.
The underlying point to note is that courts give serious thought as to the nature of the injury
presented by the available evidence.

Section 219 of the PCA does not specifically mention or require that the accused must
maliciously or intentionally cause grievous harm. The section only requires the accused to
unlawfully cause grievous harm. In the case of Gitau and another v Republic [1967] 1 EA 449
the appellants were convicted of unlawful doing of grievous harm. One of the grounds of appeal
was that there was no intent to cause grievous harm. Court noted that the word “unlawfully”
should be given its ordinary meaning, and that meaning without any doubt covers reckless and
grossly negligent acts.
Unlawful wounding S. 222 PCA

According to section 222 of the PCA, the offence is committed where any person unlawfully
wounds another or unlawfully, and with intent to injure or annoy any person, causes any poison
or other noxious thing to be administered to or taken by any person.

Under Section 2 (hh) PCA, a wound means any incision or puncture which divides or pierces
any exterior membrane of the body, and any membrane is exterior for the purpose of this
definition which can be touched without dividing or piercing any other membrane.

The case of Rahim Rajan v R [1958] 1 EA 448 explains in details circumstances under which
the offence is committed and the meaning of what amounts to unlawful wounding.

Criminal recklessness and negligence. S. 227-234

Under section 227 of the PCA any person who, by any rash or negligent act not amounting to
manslaughter, causes the death of another person is liable to imprisonment for a term not
exceeding seven years or to a fine not exceeding seventy thousand shillings or to both such
imprisonment and fine.

It relates to cases where the homicide is caused by negligence. It does not apply to cases where
the death has arisen, not from the negligent or rash mode of doing the act, but from some result
supervening upon the act which could not have been anticipated. Under this section rash or
negligent act must be the direct or proximate cause of death. The two essential elements are:

1) Rash or negligent act,

2) Not amounting to culpable homicide.

Rash or negligent act

If the death results from injury intentionally inflicted, this section does not apply. Death should
have been the direct result of the rash and negligent act and that act must be the proximate and
efficient cause without the intervention of another's negligence.

Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and
that it may cause injury, or knowledge that injury will probably be caused.

Criminal negligence is acting without the consciousness that the illegal and mischievous effect
will follow but in circumstances, which show that the actor has not exercised the caution
incumbent upon him and that if he had he would have had the consciousness.

Not amounting to culpable homicide

The rash or negligent act which is declared to be a crime is one not amounting to culpable
homicide, and it must be therefore be taken that intentionally or knowingly inflicted violence,
directly and willfully caused, is excluded.

See sections 228 to 234 of the PCA.

In M’ibui v Dyer [1967] 1 EA 315 the plaintiff was shot by the defendant on suspicion that he
was a wrong doer. The issues formed by the court were;

1. Whether the defendant was negligent in using a firearm

2. Whether the defendant was negligent in the particular manner in which he used his
shotgun.

The court found that the defendant was negligent in shooting at and injuring the plaintiff, and
that he is not protected by any provisions of the criminal law as the amount of force he used in
the particular circumstances was neither reasonable nor necessary.

Homicides

A homicide refers to the killing of one human being by another human being. Although the term
homicide is sometimes used synonymously with murder, homicide is broader in scope than
murder. Murder is a form of criminal homicide; other forms of homicide might not constitute
criminal acts. In Uganda, statutes generally divide criminal homicide into two broad categories:
lawful and unlawful. Every homicide is presumed to be unlawful unless excused by the law.

In Criminal Case No. 0056 Uganda v Mpanju it is stated that all homicides in Uganda are
presumed by law to be unlawful except where such deaths are excusable by law itself. Such
excuses consist of the following: Death caused accidentally, Death occasioned in defence of life
or property, Death which is carried out in the execution of a lawful sentence, Death that is
occasioned as a result of extreme and immediate provocation.

In Uganda, unlawful homicides are classified as crimes like murder and manslaughter.

Murder under Section 188 PCA

Murder occurs where any person who of malice aforethought causes the death of another person
by an unlawful act or omission commits murder. According to Criminal Case No. 0056 Uganda
v Mpanju, the prosecution is duty bound to prove the following ingredients beyond reasonable
doubt:

1. Death of a human being.

 2. Unlawfulness of the death.

3. Death accompanied by malice aforethought.

4. Participation of the accused in the causation of the death.

What amounts to death of a human being?

According to Black’s Law dictionary, death refers to ending of life; the cessation of all vital
functions and signs. Brain/legal death is a bodily condition of showing no response to external
stimuli, no spontaneous movements, no breathing, no reflexes, and a flat reading (on a machine
that measures the brain's electrical activity).

Prior to the development of modern medical technology, it was well settled that death occurred
when respiration and circulation ceased. The common law standard for determining death is the
cessation of all vital functions, traditionally demonstrated by an absence of spontaneous respira-
tory and cardiac functions. It has also been extended to include the new procedures for
determination of death based upon irreversible loss of all brain functions.

In Re Bowman (1980) the Supreme Court of Washington, that a person is dead where there is an
absence of spontaneous respiration and cardiac function and attempts at resuscitation are
considered hopeless; or, when there is an absence of spontaneous brain function and it appears
that further attempts at resuscitation will not succeed. For legal and medical purposes, an
individual who has sustained irreversible cessation of all functioning of the brain, including the
brain stem, is dead.

In Uganda V Namwanje Criminal Session Case No. 100 of 2011 prosecution sought to rely on
the charge and caution statement repudiated at the trial by the accused. The Prosecution did not
call any witness who saw the deceased’s body or participated in the burial apart from the
Statement of the accused where she confessed that she killed the deceased.

Court noted that death may be proved by evidence of witnesses who state that they attended the
burial or saw the dead body. Court noted that death can be established even in the absence of
medical evidence by witnesses to establish it. However, in the case at hand, the prosecution
neither produced the Post mortem report nor any of the eye witness was called as witnesses.

Prosecution had the incumbent duty to adduce evidence to prove that indeed the deceased was
dead. It failed to discharge this duty.

What amounts to unlawfulness of death?

It is already noted that unlawfulness of death as an ingredient is well laid down in the old case of
Gusambizi son of Wesonga (1948) which is to the effect that all facts of the death of human
being is proved to be unlawful unless such acts is excusable under four circumstances of;
accidental death, death occasioned in the execution of a lawful sentence of a competent court,
death occasion in defence of self and protection of property and death occasion by extreme
provocation.

Where the available evidence does not fall under the category of excusable homicides, the
ingredient is deemed to be proved beyond reasonable doubt.

What amounts to Death accompanied by malice aforethought?

Under section 191 PCA, malice aforethought is deemed to be established by evidence providing
either of the following circumstances;

1. An intention to cause the death of any person, whether such person is the person actually
killed or not.

2. Knowledge that the act or omission causing death will probably cause the death of some
person, whether such person is the person actually killed or not, although such knowledge
is accompanied by indifference whether death is caused or not, or by a wish that it may
not be caused.

According to Hon. Justice Mr. Ralph W. Ochan in Uganda V Okot & 7 Ors (Criminal Case
No. 0029 of 2011), from the above definition, malice aforethought is a mental element that is
difficult to prove by direct evidence. It is stated that there is no hard and fast rule laid down on
how a Court should reach a conclusion on how malice aforethought existed.

Nonetheless, the Court listed down a few inclusive factors from which a Court can draw such
inference. These are;

 The weapon used and the manner it was applied.

 The part of the body of the victim that was targeted.

It will be obvious that ordinarily an inference of malice aforethought will follow more readily
from the use of say a spear or knife than the use of a stick that is not to say the Court takes a
lineate view whether a stick is used. Every case is to be judged on its own facts.

The Supreme Court of Uganda stated the law on evidence for proof of malice aforethought in the
case of Nanyonjo Harriet and Another versus Uganda Criminal Appeal No.24 of 2002 when
the Court held

“In case of homicide, the intention and/or knowledge of the accused person at the time of
committing the offence is rarely proved by direct evidence. More often than not the court
 finds it necessary to deduce the intention or knowledge from the circumstances
surrounding the killing, including the mode of killing, the weapon used, and the part of
the body assailed and injured.”

According to section 191 (b) PCA, cause of death must be established. Under section 196 PCA,
a person is deemed to have caused the death of another person although his or her act is not the
immediate or sole cause of death in any of the following;

1. If he or she inflicts bodily injury on another person in consequence of which that person
undergoes surgical or medical treatment which causes death. In this case it is immaterial
whether the treatment was proper or mistaken, if it was employed in good faith and with
common knowledge and skill.

But the person inflicting the injury is not deemed to have caused the death if the
treatment which was its immediate cause was not employed in good faith or was so
employed without common knowledge or skill.

2. If he or she inflicts a bodily injury on another which would not have caused death if the
injured person had submitted to proper surgical or medical treatment or had observed
proper precautions as to his or her mode of living.

3. If by actual or threatened violence he or she causes such other person to perform an act
which causes the death of such person, such act being a means of avoiding such violence
which in the circumstances would appear natural to the person whose death is so caused.

4. If by any act or omission he or she hastened the death of a person suffering under any
disease or injury which apart from such act or omission would have caused death.

5. If his or her act or omission would not have caused death unless it had been accompanied
by an act or omission of the person killed or of other persons.

To understand cause of death, the Penal Code Act under section198 provides for limitation as to
time of death in the following circumstances;

1. A person is not deemed to have killed another if the death of that person does not take
place within a year and a day of the cause of death.

2. The limitation period is reckoned inclusive of the day on which the last unlawful act
contributing to the cause of death was done, and when the cause of death is an omission
to observe or perform a duty, the period is reckoned inclusive of the day on which the
omission ceased.

3. When the cause of death is in part an unlawful act and in part an omission to observe or
perform a duty, the period is reckoned inclusive of the day on which the last unlawful act
was done or the day on which the omission ceased, whichever is the later.
When child deemed a person

For purposes of causation of death, a child becomes a person capable of being killed when it has
completely proceeded in a living state from the body of its mother, whether it has breathed or
not, and whether it has an independent circulation or not, and whether the navel string is severed
or not. This understanding is provided under section 197 of the Penal Code Act.

Manslaughter under section 187 PCA

It is an offence of manslaughter where any person who by an unlawful act or omission causes the
death of another person. According to the case of Uganda v Muherwa [1972] 1 EA 466, for the
offence Manslaughter to stand, prosecution is required to prove the following beyond reasonable
doubt;

a. Death of a person

b. The act or omission causing death should be unlawful

c. Accused should be responsible for the death.

The difference between murder and manslaughter is that intention to call is not a necessary
ingredient in the offence of Manslaughter. In Uganda v Muherwa [1972] 1 EA 466, in the
accused had no intention to kill the deceased because of the number of injuries he inflicted upon
the deceased and their position. One would have expected the accused to cut the deceased several
occasions and on vital organs or parts of the body, such as the head; if he had intended to kill
him, but he did not. The cut was one and on a leg and it was just unfortunate that the wound did
sever the vital blood vessels which led the deceased to bleed to his death.

It’s worth noting that manslaughter is classified into voluntary and involuntary. As for voluntary
manslaughter, the intention to kill a person exists but negatived by certain facts e.g. provocation.

On the other hand, involuntary manslaughter usually refers to an unintentional killing that results
from recklessness or criminal negligence. In this case, the accused does not deliberately kill the
victim but due to his actions the victim dies. Example A comes home to find his wife in bed with
B. A head to a local bar to calm down his sorrows and after having five drinks, A jumps into his
car and drives along Kampala road at twice the posted speed limit. If A had killed B in a "heat of
passion" at the time he discovered the affair, then he could be guilty of voluntary manslaughter.
However, if A instead accidentally hit and killed a pedestrian while driving recklessly and
intoxicated, he could be charged with involuntary manslaughter.

Provocation

Provocation is a form of voluntary manslaughter and its provided for under section 192 PCA
states that when a person who unlawfully kills another under circumstances which, but for this
section, would constitute murder, does the act which causes death in the heat of passion caused
by sudden provocation as defined in section 193, and before there is time for his or her passion to
cool, he or she commits manslaughter only.

The detailed definition is provided for under section 193 PCA. In Criminal Session Case No. 32
of 2011 Uganda versus Namboira Miria, the accused was indicted for murder. While at the
trial, the issue was whether the accused actually, intended to kill the deceased, more so taking
into account the provisions of Section 193 (1) P.C.A.

Court noted that provocation is defined to include any wrongful act of such nature as to be likely
when done or offered to an ordinary person, should to deprive him or her of her power of self-
control and to induce him/her to commit an assault of the kind, which the person charged
committed upon the person by whom the act or insult is offered.

Manslaughter/Provocation/Witchcraft

Yovan v Uganda [1970] 1 EA 405 this is an appeal from a conviction for murder and the only
question on the appeal was whether the trial judge had correctly dealt with the defence of
provocation. Two of the appellant’s children suddenly died and the appellant suspected that the
deceased, an elderly woman and his step mother, had killed the two children either by witchcraft
or poison. On the same day, the appellant went to the deceased house and blamed her for the
death of his children. The deceased did not deny the allegation but threatened the appellant that
he also would die before performing the funeral ceremony for his two children. The appellant got
annoyed and cut the deceased on her head and killed her.

Held that although the act of the deceased in threatening to cause the death of the appellant,
presumably by witchcraft, must be viewed not in isolation but in the context of the appellant’s
children having just died, the appellant honestly believing the deceased to have been responsible
for their deaths, and the deceased knowing of this belief, uttering of such threats by the deceased,
in these circumstances, could never constitute a wrongful act and thus legal provocation. The
appellant’s belief that the deceased killed his children alone was not sufficient to form legal
provocation.

Involuntary Manslaughter

This is the term given to unlawful killing where the necessary mensrea is not present. In this case
the accused will not have had the intention to kill. In fact the accused would not have
contemplated the death of the victim at all. E.g

 Manslaughter by unlawful or dangerous act;

 Manslaughter by gross negligence;

 Manslaughter by due recklessness.

Unlawful or dangerous act

This arises where the accused causes death of another by unlawful or dangerous act. R v
Mitchell [1983] QB 741 the appellant tried to jump the queue at a Post Office. An elderly man
took issue with the appellant's behaviour and challenged him. The appellant hit the old man and
pushed him. The man fell back onto others in the queue including an elderly lady who fell and
broke her leg. She later died. The appellant was convicted of manslaughter and appealed
contending that the unlawful act was not directed at the woman.

It was held that there was no requirement that the unlawful act be directed at the victim.

What amounts to dangerous act was further established in The case of R v Church [1966] 1 QB
59 where Edmund-Davies J provided a definition of dangerousness when he stated:

"... the unlawful act must be such as all sober and reasonable people would inevitably
recognise must subject the other person to, at least, the risk of some harm resulting
therefrom, albeit not serious harm..."

The defendant had gone to his van with a woman for sexual purposes. She mocked his impotence
and he had attacked her, knocking her out. The defendant panicked, and wrongfully thinking he
had killed her, threw her unconscious body into a river, where she drowned. The defendant was
convicted of manslaughter. He had acted unlawfully towards the victim in a way that sober and
reasonable people would appreciate involved risk of injury to the victim.

Gross negligence

Negligence manslaughter is a form of involuntary manslaughter where the defendant is

ostensibly acting lawfully but where he or she has caused death although never intended to cause
death nor bodily harm. In R v Bateman 19 Cr App R 8 a doctor was convicted of manslaughter
arising out of his treatment of a woman in childbirth. The Lord Hewitt CJ noted that the
following ingredients ought to be proved for negligence to arise;

 That the accused owed a duty to take care the victim.

 That that duty was not discharged.

 That the default to discharge the duty caused the death of the victim.

In order to establish criminal liability the facts must be such that in the opinion of the court the
negligence of the accused amounts to a crime.

In R v Pittwood [1902] TLR 37 the defendant was employed by a railway company to man the
gate at a level crossing. The defendant lifted the gate to allow a cart to pass and then went off to
lunch failing to put it back down. A train later collided with a horse and cart killing the train
driver. The defendant was liable for the death of the train driver as it was his contractual duty to
close the gate.
Manslaughter by due recklessness

It will be recalled that a person is subjectively reckless as to a risk if he himself foresees that risk
as a possible consequence of his conduct and he takes that risk, and in all the circumstances it is
unreasonable for him to do so. In R v Lawrence (Stephen) [1982] AC 510 House of formulated
a standard direction to establish reckless manslaughter where is stated that recklessness would be
established ounce two things are satisfied;

 First, that the defendant was in fact driving the vehicle in such a manner as to create an
obvious and serious risk of causing physical injury to some other person who might
happen to be using the road or of doing substantial damage to property; and

 Second, that in driving in that manner the defendant did so without having given any
thought to the possibility of there being any such risk or, having recognised that there was
some risk involved, had nonetheless gone on to take it.

It is for the jury to decide whether the risk created by the manner in which the vehicle was being
driven was both obvious and serious and, in deciding this, they may apply the standard of the
ordinary prudent motorist as represented by themselves.

If satisfied that an obvious and serious risk was created by the manner of the defendant's driving,
the jury are entitled to infer that he was in one or other of the states of mind required to constitute
the offence and will probably do so; but regard must be given to any explanation he gives as to
his state of mind which may displace the inference.

Suicide pacts. S. 195

Section 195 (3) PCA defines suicide pacts to mean a common agreement between two or more
persons having for its object the death of all of them, whether or not each is to take his or her
own life, but nothing done by a person who enters into a suicide pact shall be treated as done by
him or her in pursuance of the pact unless it is done while he or she has the settled intention of
dying in pursuance of the pact.

Section 195 (1) PCA provides that it shall be manslaughter and shall not be murder for a person
acting in pursuance of a suicide pact between him or her and another to kill the other or be a
party to the other killing himself or herself or being killed by a third person.

Where it is shown that a person charged with the murder of another killed the other or was a
party to the other’s killing himself or herself or being killed, it shall be for the defence to prove
that the person charged was acting in pursuance of a suicide pact between him or her and the
other.

Example: Kibwetere incident in Kanungu District

Read: Criminal Liability of Participants in Suicide - State v Williams, Maryland Law review,
volume 5, issue 3

It should be noted that suicide pact can only be raised as a defence where murder has been
preferred.

Infanticide, S. 213.

Section 213 PCA provides that a woman by any willful act or omission causes the death of her
child under the age of twelve months, but at the time of the act or omission the balance of her
mind was disturbed by reason of her not having fully recovered from the effect of giving birth to
the child or by reason of the effect of lactation consequent upon the birth of the child, then,
notwithstanding that the circumstances were such that but for the provisions of this section the
offence would have amounted to murder, she commits the felony of infanticide, and may for
such offence be dealt with and punished as if she had been guilty of the offence of manslaughter
of the child.

In R V Borowiec [2016] 1 S.C.R. 80 the respondent was charged with two counts of second
degree murder in relation to the deceased newborns. The trial judge found that the Crown failed
to prove beyond a reasonable doubt that the respondent’s mind was not disturbed. He acquitted
the respondent of murder and found her guilty of two counts of infanticide.

Court noted that Infanticide applies in the narrow set of circumstances where;

 A mother, by a wilful act or omission, kills her newborn child (under one year of age).

 At the time of the act or omission, the mother’s mind is “disturbed” either because she is
not fully recovered from the effects of giving birth or by reason of the effect of lactation:

It was decided that where there is extreme panic associated with the delivery which triggered
significant dissociative symptoms, in particular depersonalization, which in turn impaired the
mother’s ability to think clearly, to accurately perceive and judge her situation, to make
reasonable decisions and to control her behaviour, it is concluded that the mother’s mind was
disturbed as a result of not having fully recovered from the effects of giving birth

OFFENCES AGAINST MORALITY

Rape, s. 123 PCA

It is provided that any person who has unlawful carnal knowledge of a woman or girl, without
her consent, or with her consent, if the consent is obtained by force or by means of threats or
intimidation of any kind or by fear of bodily harm, or by means of false representations as to the
nature of the act, or in the case of a married woman, by personating her husband, commits the
felony termed rape. In Nakholi v Republic [1967] 1 EA 337 the appellant, a schoolmaster, was
convicted in the High Court at Kisumu of the offence of rape. Court noted that the two essentials
elements to be proved are therefore carnal knowledge of a woman or girl and lack of consent.
Both these essentials must be established by the prosecution and accepted by the court before a
conviction for rape can be arrived at.

According Hon Justice Wilson Musene Masalu in Session Case No. 319 of 2012 Uganda versus
Balikamanya Patrick The accused Balikamanya Patrick was indicted for Rape C/S 123 & 124
of the Penal Code Act. The court noted that the essential elements requiring proof beyond
reasonable doubt in the offence of Rape are:
1. That there was Unlawful Sexual Intercourse with the complainant.
2. That the complainant did not consent to that Sexual Intercourse
3. That it was the accused who had the unlawful Sexual Intercourse with the complainant.

What amounts to unlawful carnal knowledge or sexual intercourse?

In defining the meaning of carnal knowledge, courts have developed different opinions. Some
judges argue that penetration alone is sufficient, while other's deemed emission as an essential
ingredient in the crime. In some jurisdiction, the better opinion seems to be that both penetration
and emission are necessary. It is, however, to be remarked, that very slight evidence may be
sufficient to induce a court to believe there was emission. In Scotland, emission is not requisite.

In Uganda, where evidence reveals injuries in form of bruises around the lateral vaginal wall of
the victim and that the injuries are consistent with force having been used sexually, unlawful
sexual intercourse is established. See the judgment of Uganda versus Balikamanya Patrick.

Sexual intercourse is further explained in Bassita Hussein Vs. Uganda, Criminal Appeal No.
35 of 1995, where the Supreme Court of Uganda held as follows:
“The Act of sexual Intercourse or penetration may be proved by direct or circumstantial
evidence and corroborated by Medial evidence or other evidence. Though desirable, it is
 not a hard and fast rule that the victim’s evidence must always be adduced in every case
of Defilement to prove sexual intercourse or penetration. Whatever evidence the
Prosecution may wish to adduce to prove its case, such evidence must be such that it is
sufficient to prove the case beyond reasonable doubt”.

Lack of consent

The importance of lack of consent was emphasized in the case of Nakholi v Republic [1967] 1
EA 337 where the trial judge took the age of the victim to be thirteen years and in his address to
assessors was that the question of the victim’s consent was not important since she was incapable
of giving consent legally.

It was held that absence or lack of consent was an essential ingredient of the offence of rape and
that the accused may not be properly convicted of rape unless lack of consent by the girl is
proved.

In Criminal Case No. 27 Of 2011 Uganda v Osipira Etma, the accused person in this case was
charged with rape c/s 123 of the penal code Act. It was alleged that the accused person on 10th
February 2011 at Serere Township had unlawful carnal knowledge of the victim without her
consent. The key question was whether there was no consent for sexual encounter.

Hon. Lady Justice Henrietta Wolayo observed that although the state and defence counsel
admitted medical evidence by consent, it was not helpful as the clinical officer who examined the
found no evidence of penetration. The court had to look for other evidence to prove the offence
by oral testimony of the witnesses.

Court held that where the victim raised an alarm which was answered by the witness who saw
the accused running out of the victim’s house without a shirt and the fact that the victim was
weak after the sexual intercourse with accused person was strong evidence to prove lack of
consent.

Consent procured by force or by means of threats or intimidation of any kind or by fear of bodily
harm.

In Criminal Session Case No. 88 Of 2013 Uganda V Odumuna Simon the accused person in
this case was charged with rape c/s 123 of the penal code. The prosecution had a duty to prove
beyond reasonable doubt that the accused person had unlawful carnal knowledge of the
complainant without her consent or if the consent was obtained by force or intimidation or
threats or by false representation as to the nature of the act.

It was established that in 2010, the victim started living with her father, the accused person, after
she left her matrimonial home. He administered herbs for her to conceive but in fact it was to
weaken her. The accused began seducing the victim with threats that he would kill her if she
declined his advances. The threats were also directed to her grandmother. The victim gave in
and she conceived. After her grandmother’s death, accused relocated her to his house where she
lived until his arrest.

Court held that the victim was intimidated, and coerced into sexual union with her father who
threatened to kill her or assign someone to kill her if she declined. She was intimidated into not
revealing to anyone what was happening to her and when she revealed to her grandmother, he
assaulted both her and the grandmother. In cross examination, the victim said she was first
sexually assaulted when she took him water on his request, whereupon, he threw her on the bed
and had sex with her. Further evidence of coercion and intimidation is that she was not allowed
to speak to anyone or even greet visitors who came home.

Note:

 It should be noted that rape can only be sustainable against a male person. The term
carnal knowledge usually refers to the penetration of a woman organ by a male sexual
organ. However, a female who aids a male person may be guilty as an aider, or procurer.

 A boy under the age of fourteen years is presumed incapable of committing the offence
of rape since he is incapable of penetrating.

Corroboration

Corroboration denotes to support or enhance the believability of a fact or assertion by the

presentation of additional information that confirms the truthfulness of the item. It also refers to
evidence that tends to support a proposition that is already supported by some initial evidence,
therefore confirming the proposition.

In Uganda, Case Law has established that “in sexual offences, before an accused can be
convicted, the evidence of the complainant has to be corroborated by either direct or
circumstantial evidence un-contradicted and accepted by the court”. See Charles Katende vs
Uganda [1971] 2 ULR.

The justification for the requirement of corroboration is that human experience has shown that in
most cases girls or women may tell an entirely false story. The other rationale is that it is
unlikely that the offender will commit the offence in the presence of witnesses.

It should be noted that it’s possible to convict an accused on uncorroborated evidence where the
court is convinced about the truthfulness of the complainant/victim. The case of CHILA & 1 VS
R. [1967] EA 722, it is a well-established principle that the court must, after warning itself of the
danger of convicting without corroboration, express itself to be convinced of the truth of the
child’s story.

It should be noted that although case law provides what constitutes corroboration evidence, there
is no hard and first rule. Each case must be decided depending on its own facts. The following
have generally been accepted as corroboration;

 Evidence of struggle may be corroboration. In Session Case No. 319 Of 2012 Uganda V
Balikamanya Patrick, the investigating officer visited the scene and found signs of
struggle and drew the Sketch Map. The observation indicated that there was no consent to
the act of sexual intercourse. The other example of struggle would include injuries
sustained by the victim.

 The state of the victim’s clothes e.g. tone knockers and others clothes.

 Description of the accused by the victim or other witnesses. In Lawi Ongweya v

Republic [1964] 1 EA 129 court held that the fact that the complainant correctly
described the appellant’s outward appearance and clothing was no corroboration of her
evidence that he was her assailant, but her knowledge that he had a scar on the inside of
his left thigh was a circumstance corroborative of her assertion that it was he who had
sexually assaulted her, and wholly incompatible with the assertion of the appellant, who
was an admitted stranger to her, that “he knew nothing about her.

 Medical evidence. This can be used to corroborate that there was sexual intercourse
without the consent of the victim. In Uganda V Balikamanya Patrick the Medial
examination revealed injuries in form of bruises around the lateral vaginal wall and stated
that the injuries were consistent with force having been used sexually.

 Distressed condition of the victim. In Criminal Case No. 27 Of 2011 Uganda v Osipira
Emma court took into consideration the testimony of a witness that she found the victim
weak and told her of the unwanted sexual encounter with the accused.

 Conduct of the accused after the alleged commission of the offence. In Katumba James
vs. Uganda Criminal Appeal No. 45 of 1999 the flight of the accused person from the
scene of the alleged crime when the people answered the victim’s alarm constituted
corroboration of the testimony of the victim that the accused had forceful sexual
intercourse with her.

Defilement, S. 129 PCA

Before the amendment in 2007, a person committed defilement where he had unlawfully has
sexual intercourse with a girl under the age of eighteen years. The prosecution would only prove
the offence where there was sexual intercourse with a girl under the age of eighteen years. The
current law expanded the offence to categorized it into two segments. The first being simple
defilement as well as aggravated.

Simple defilement

The word simple defilement is not provided for the Penal Code. It’s being employed through
practice to separate it from aggravated defilement.

Under Section 129 (1) PCA as amended, any person who performs a sexual act with another
person who is below the age of eighteen years, commits a felony known as defilement and is on
conviction liable to life imprisonment.

Under section 129 (7) PCA as amended, “sexual act” means;

 Penetration of the vagina, mouth or anus, however slight, of any person by a sexual
organ;

 The unlawful use of any object or organ by a person on another person’s sexual organ.

Under the same section, sexual organ refers to a vagina or a penis.

For the offence of defilement to be proved under 129 (1) PCA as amended, the prosecution
should prove the following;

(1) That there was a sexual act performed.

(2) That the sexual act was performed on a child below the age of 18 years

(3) That it was the accused who performed the sexual act

Aggravated defilement

Under section 129 (3) and (4) of the PCA as amended, any person who performs a sexual act
with another person who is below the age of eighteen years in any of the circumstances specified
in subsection (4) commits a felony called aggravated defilement and is, on conviction by the
High Court, liable to suffer death. The circumstances referred to are as follows;

a. Where the person against whom the offence is committed is below the age of fourteen
years;

b. Where the offender is infected with the Human Immunodeficiency Virus (HIV);
 c. Where the offender is a parent or guardian of or a person in authority over, the person
against whom the offence is committed;

d. Where the victim of the offence is a person with a disability; or

e. Where the offender is a serial offender.

The ingredients of the offence are the same as in simple defilement except that the circumstances
enlisted above should be in existence for aggravated defilement to be proved. See Session Case
No. 0364 of 2014 Uganda versus Ojara Denis and session Case No. 9 of 2014 Uganda versus
Kidyel Henry Komakech.

The amendment introduced some matters which ought to be taken note of viz;

 Mandatory examination of the person charged to ascertain his or her Human Immuno
Deficiency Virus (HIV) Status. See section 129 (6) PCA.

 The Application of the Children Act Cap 59 where there is a Child to Child sex. See
section 129A PCA as amended.

 Payment of compensation to the victims of defilement. See section 129B PCA as

amended.

 Attempted defilement as a specific offence was also introduced under section 129 (2)
and (5) PCA as amended.

Indecent Assault. S 128 PCA.

This is an assault accompanied by circumstances of indecency S. 128 (1) of PCA provides that
any person who unlawfully and indecently assaults any woman or girl is guilty of a felony and is
liable to imprisonment for 14 years.

Section 128 (2) therefore provides that it is not a defence to a charge of indecent assault of a girl
under the age of 18 years to prove that she consented to the act of indecent.

Section 128 (3) provides that any person who intends to insult the modesty of any woman or girl
alters any word makes any sound or gesture or exhibits any object intending such sound or word
to be heard or such woman or girl is guilty of a misdemeanor and is liable to imprisonment for
one year.

Section 147 therefore provides for indecent assault on boys under 18 years, it further provides for
a maximum penalty of imprisonment for 4 years in case one is found guilty.
In In Katimba v Uganda [1967] 1 EA 363 (HCU) court observed that the accused cannot be
convicted of indecent assault on uncorroborated evidence. In respect to the charge of indecent
assault there was no medical evidence to support the allegation.

What amounts to indecent assault was discussed in Hamisi v Republic [1972] 1 EA 367 where
the accused was charged with attempted rape but, on the evidence, the resident magistrate found
him not guilty of the offence but guilty of indecent assault. On inspection of the record the Court
found it necessary to admit the case for argument as to whether the facts as found by the trial
magistrate amounted to indecent assault on the complainant by the accused.

On 26 June 1970, the complainant, while going home from the Government guest house in
Tabora, found the accused. The accused threw his bicycle to the ground and held the
complainant and said to her that he was going to have sexual intercourse with her by force. The
accused then dragged her to a place where there was tall grass and threw her to the ground, drew
a knife, and threatened to kill her if she did not comply with his request. According to her
evidence the accused holding the knife at her, forced her to remove her underclothes which she
did. The accused then started to remove his trousers but as he was doing so a police car stopped
nearby and the complainant called for help. The driver of the car went to the scene and took both
parties to the police station. The accused was eventually charged with attempted rape.

The issue was whether the facts were sufficient to support the alternative verdict of indecent
assault.

Court held;

 That an assault on a lady though not indecent in itself becomes indecent if it is

accompanied by indecent utterances suggestive of sexual intercourse.

 Since the accused in this case had earlier asked the complainant to have sexual
intercourse with him and he, in trying to accomplish his passions, threw her to the
ground, his throwing her to the ground amounted to indecent assault.

 That forcing by the accused of the complainant to remove her underpants amounted to
removing the underpants of the complainant by the accused and as such the accused was
guilty of indecent assault.

Elopement. S 127 PCA

Under section 127 (1) PCA, a person commits an offence elopement where he elopes with a
married woman or entices or causes a married woman to elope with him. Similarly, section 127
(2) PCA provides that any female who elopes with a married man or entices or causes a married
man to elope commits an offence. For the offence to start, the prosecution should be able to
prove the following;

a. That there is elopement.

b. That it is with a married woman or Married man

c. The accused should have caused the elopement.

What amounts to elopement was discussed in the case of Uganda v Solomon and another
[1971] 1 EA 46 where the first respondent was charged with eloping with a married woman not
his wife and the second respondent was charged with eloping with a person who was not her
husband. The magistrate acquitted the respondents on the ground that the acts constituting
elopement are not defined in the Act and that therefore the offence is not defined within the
Constitution, Art. 15 (8). The matter was considered as a revision in the High.

Court observed that elopement means running away with married persons. It was further decided
that the person with whom the accused eloped should be married at the time and where there is
evidence of permanent separation, the offence is not committed.

In Uganda v Olungu [1972] 1 EA 136 the accused was convicted of elopement although the
prosecution evidence showed that the complainant’s wife had left him years before.

On revision it was held that the word “elopement” implies “running away with-usually from
some kind of home”. Where the wife had run away from her husband at least four years prior to
the alleged offence and it appears obvious that once she had permanently left the matrimonial
abode, the accused could not have committed the offence of elopement.

See Uganda v Akua and another [1973] 1 EA 246 where compensation should only be awarded
where the complainant shows that he was aggrieved.

Adultery, S. 154 PCA

It should be noted that section 154 was declared unconstitutional and do not have a force of law
in Uganda.

Constitutional Petitions Nos. 13 /05 /& 05 /06 15 Law & Advocacy For Women in Uganda
Versus Attorney General of Uganda one of the issues among others was whether section 154
of the Penal Code Act is inconsistent with Articles 20, 21, 24, 31, 33(1) and 44 of the
Constitution.

It was argued that section 154 of the Penal Code Act treats a married man differently from a
married woman in that a married man commits no adultery with an unmarried woman. He
pointed out that is an offence for a married woman to have sex with any man whether married or
not but the same law exonerates a married man's conduct who has sex with an unmarried woman.
It was stated that this set of law treats women derogatorily and with less respect contrary to the
Constitution.

It was argued for the Attorney General that although section 154 of the Penal Code Act is
discriminatory against women on grounds of sex and inconsistent with the Constitution the Court
in making the declarations should modify the impugned provisions by providing the same
punishment for married men and married women instead of striking it out.

Court concluded that the provision of section 154 of the Penal Code Act is inconsistent with the
stated provisions of the Constitution and it is void. Under article 137 (3) of the Constitution, this
court is only required to declare whether or not an Act of Parliament or any other law or anything
done under authority of any law or any act or omission by any person or authority is inconsistent
with or is in contravention of the provisions of the Constitution. The Court is also enjoined to
grant redress where appropriate. The provisions of the article do not seem to give this Court
mandate to modify a law which it has found to be inconsistent or in contravention with the
provisions of the Constitution.

Unnatural Offences, S. 145 PCA

Section 145 PCA creates the offence of Unnatural offences where any person;

a. Has carnal knowledge of any person against the order of nature;

b. Has carnal knowledge of an animal; or

c. Permits a male person to have carnal knowledge of him or her against the order of nature,

Bigamy, S. 153 PCA

Section 153 PCA creates the offence of Bigamy where any person who, having a husband or
wife living, goes through a ceremony of marriage which is void by reason of its taking place
during the life of such husband or wife commits.

Incest, S 149 PCA

Section 149 (1) PCA provides that any person who has sexual intercourse with another person
with whom, to his or her knowledge, any of the following relationships exists Mother/father,
Mother’s daughter/father’s son, Daughter/son, father’s mother/father’s father, mother’s
mother/mother’s father, son’s/daughter, son’s/son, daughter’s daughter/daughter’s son, sister
/brother, wife’s mother/husband’s father, wife’s daughter/husband’s son, father’s sister/father’s
brother, mother’s sister/mother’s brother, brother’s daughter/brother’s son, sister’s
daughter/sister’s son, father’s brother’s/daughter, father’s brother’s son, mother’s sister’s
daughter/mother’s sister’s son, son’s wife/daughter’s husband, father’s wife/mother’s husband.
Under 149 (2), it is immaterial that sexual intercourse took place with the consent of the other
person.

Section 149 (3) states that where a person is convicted of an offence under this section in relation
to a person under the age of twenty-one years, the court may divest the offender of all authority
over that person, and if the offender is the guardian of such person the court may order the
termination of the guardianship and appoint another person as guardian.

Under 149 (4) the High Court may, at any time, vary or rescind an order made under subsection
(3) by the appointment of any other person as a guardian or in any other respect.

Barugahara v Uganda [1969] 1 EA 72 the appellant, Nserimi Barugahara, was convicted of

incest. The victim’s mother then aged seventeen years ago married to and cohabited with the
appellant as husband and wife in Kampala. The victim’s mother decided to go home to Toro
where the baby was subsequently born.

When the victim was twelve years old, the appellant brought her to live with him as her father
and both of them were living alone in the house. In the course of their living together, the
appellant became fond of and intimate with his daughter. He used to have sexual intercourse with
her and she became pregnant.

In his defence, the appellant argued that the victim’s mother was never his wife although there
was evidence of both cohabiting and used to have sexual intercourse together.

Held;

 The offence of incest is committed even if the relationship is not traced through lawful
wedlock.

 The evidence of a female witness liable to be prosecuted for incest requires to be

corroborated;

Prostitution and other related offences. S. 136-139 PCA

Section 136 (1) PCA states that every person who knowingly lives wholly or in part on the
earnings of prostitution and every person who in any place solicits or importunes for immoral
purposes commits an offence and is liable to imprisonment for seven years.

Under 136 (2) where a person is proved to live with or to be habitually in the company of a
prostitute or is proved to have exercised control, direction or influence over the movements of a
prostitute in such a manner as to show that he or she is aiding, abetting or compelling his or her
prostitution with any other person, or generally, that person shall, unless he or she shall satisfy
the court to the contrary, be deemed to be knowingly living on the earnings of prostitution.
The interpretation of the section was considered in the case of Karuria v Republic [1969] 1 EA
16 where the appellant was convicted on her plea of knowingly living on the earnings of
prostitution contrary to s. 154 of the Kenyan Penal Code. She has appealed against her sentence
of six months’ imprisonment

Court observed that the prosecutor’s statement of facts led it to believe that the appellant was
probably a prostitute living on her own earnings as such and State Counsel confirms that this was
in fact the position and that there is nothing to indicate that the appellant lived in whole or in part
on the earnings of any other prostitute.

Court thought it proper to consider whether or not the facts constituted an offence under the
section.

Court observed that the latter part of the section clearly refers to a woman who is not herself the
prostitute and the question is whether the first part of the section should be read ejusdem generis
with the latter part or whether it applies to the prostitute herself.

Prostitution

Section 139 PCA provides for the offence of Prohibition of prostitution where any person who
practices or engages in prostitution commits an offence and is liable to imprisonment for seven
years.

Section 138 PCA provides the definition of prostitute and prostitution to means a person who, in
public or elsewhere, regularly or habitually holds himself or herself out as available for sexual
intercourse or other sexual gratification for monetary or other material gain, and “prostitution”
shall be construed accordingly.

OFFENCES AGAINST PROPERTY

Theft, S. 254

Theft as an offence is provided for under section 254 (1) PCA where a person who fraudulently
and without claim of right takes anything capable of being stolen, or fraudulently converts to the
use of any person other than the general or special owner thereof anything capable of being
stolen, is said to steal that thing. For the offence to stand, the prosecution is required to prove all
the ingredients beyond reasonable doubt;

a. That there was taking or converting of anything.

b. The thing should be capable of being stolen.

c. That there was fraudulent intent to permanently deprive the owner of that property.
 d. That it was the accused who committed the crime.

What amounts to taking or converting of a thing;

See the case of Lerunyani v Republic [1968] 1 EA 107 the appellant was convicted of the theft
of a cow. The complainant placed his freshly bought cattle in the cattle boma and went to hotel
for cup. A passer-by saw the apellant sitting outside a cattle boma. On enquiring about buying a
cow in the boma, the apellant told the passer-by that the cow was owned by him and agreed to
sell it to the passer-by for Shs. 40/- and five goats. The complainant then appeared and stopped
the transaction from going further.

The appellant’s defence was that the cow was one he had lost six years earlier, or that he
honestly believed it to be such, and seeing it in the boma he decided to sell it, without more ado,
to a passer-by. The magistrate did not believe that story.

Court found that;

 For theft to occur there must be evidence of “taking” of the property court referred to
section 254 (6) PCA where a person shall not be deemed to take a thing unless he or she
moves the thing or causes it to move.

 That as regards theft by conversion, the word used in this context implies at least an act
which results in a turning about, a change, in the control of a thing in the ownership of a
thing or in the possession of a thing.

Note;

 Conversion may also occurs when a person lawfully obtains possession to the personal
property or funds of another, and then converts the property into funds for their own use
and without the person’s permission.

 When a thing converted has been lost by the owner and found by the person who
converts it, the conversion is not deemed to be fraudulent if at the time of the conversion
the person taking or converting the thing does not know who is the owner and believes
on reasonable grounds that the owner cannot be discovered.

Section 254 (4) PCA provides that when a thing stolen is converted, it is immaterial;

 Whether it is taken for the purpose of conversion or whether it is at the time of the
conversion in the possession of the person who converts it;

 That the person who converts the thing in question is the holder of a power of attorney
for the disposition of it, or is otherwise authorised to dispose of it.
What amounts to anything capable of being stolen?

Under section 253 PCA, things capable of being stolen would include the following;

 Every inanimate thing, which is the property of any person and which is movable, is
capable of being stolen.

 Every inanimate thing which is the property of any person and which is capable of being
made movable is capable of being stolen as soon as it becomes movable, although it is
made movable in order to steal it.

 Every tame animal, whether tame by nature or wild by nature and tamed, which is the
property of any person, is capable of being stolen.

 Animals wild by nature, of a kind which is not ordinarily found in a condition of natural
liberty in Uganda, which are the property of any person and which are usually kept in a
state of confinement, are capable of being stolen, whether they are actually in
confinement or have escaped from confinement.

 Animals wild by nature, of a kind which is ordinarily found in a condition of natural

liberty in Uganda, which are the property of any person, are capable of being stolen while
they are in confinement and while they are being actually pursued after escaping from
confinement, but not at any other time.

 An animal wild by nature is deemed to be in a state of confinement so long as it is in a

den, cage, sty, tank or other small enclosure, or is otherwise so placed that it cannot
escape and that its owner can take possession of it at pleasure.

 Wild animals in the enjoyment of their natural liberty are not capable of being stolen, but
their dead bodies are capable of being stolen.

 Everything produced by or forming part of the body of an animal capable of being stolen
is capable of being stolen.

In Ngavana v Republic [1972] 1 EA 559 the appellant was convicted on a charge of stock theft
and sentenced to serve a term of imprisonment of 7 years with hard labour and to receive 12
strokes of the cane.

The appellant claimed that the stock was his property throughout the trial. Both complainant and
appellant produced evidence in support their claim of ownership of the animal. It was not
disputed that the complainant had been in possession of the animal. It was also not disputed that
the appellant’s animal had been missing.
The appellant quite openly took an animal from the complainant’s land claiming it was his
missing animal. From the number of witnesses on each side heard by the magistrate it is clear
that the contest for ownership was a keen one.

Court held that the prosecution must prove both ownership of the animal and the theft and that
where the accused reasonably claims property as his, even if he is mistaken, he must be
acquitted.

Note:

 It should be noted that for the thing to be capable of being stolen, it should have some
value attached to it Kyewawula v Uganda [1974] 1 EA 293 the facts as gathered from
the evidence on record are that the appellant was an employee of the Bank of Uganda at
its Currency Board Jinja. She was convicted of stealing some of the notes which were
described in the charge as cash. Held that the notes were no longer money and could not
be stolen.

 The property must be movable in order to be capable of being stolen. Land, house cannot
be stolen. However, windows are capable of being.

Fraudulent intent to permanently deprive the owner of that property.

Before explaining the above ingredients, it’s important to understand the phrase fraudulently and
without claim of right in the definition of theft. In Francisko Sewava v Uganda [1966] 1 EA
487 court noted that a person cannot be guilty of stealing if, in taking something capable of being
stolen, he does so under a claim of right however unfounded in fact such right might be. In other
words, to commit the offence of stealing, the person concerned must be shown to have taken and
carried away the thing stolen fraudulently and without any claim of right

Section 254 (2) of the PCA provides that fraudulent intent takes the following forms;

 An intent permanently to deprive the general or special owner of the thing of it;

 An intent to use the thing as a pledge or security;

 An intent to part with it on a condition as to its return which the person taking or
converting it may be unable to perform;

 An intent to deal with it in such a manner that it cannot be returned in the condition in
which it was at the time of the taking or conversion;

 In the case of money, an intent to use it at the will of the person who takes or converts it,
although he or she may intend afterwards to repay the amount to the owner,
Note;

 Section 254 (2) PCA also protects the rights of the person who although is not the owner
of the property but where he or she has some rights of it. The person is referred to as the
Special Owner is defined to include any person who has any charge or lien upon the
thing in question or any right arising from or dependent upon holding possession of the
thing in question.

For Example: A takes his car to B for repair and in order to avoid paying, A moves
secretly and takes the car. A commits theft by depriving B of his interest.

R v Turner (No 2) [1971] 1 WLR 901 Court of Appeal The defendant took his car in to
a service station for repairs. When he went to pick it up he saw that the car was left
outside with the key in. He took the car without paying for the repairs. He was liable for
theft of his own car since the car was regarded as belonging to the service station as they
were in possession and control of it.

Circumstances when theft is not deemed to have been committed;

1. Special cases under section 255 PCA.

o where when a factor or agent pledges or gives a lien on any goods or document of
title to goods entrusted to him or her for the purpose of sale or otherwise for any
sum of money not greater than the amount due to him or her from his or her
principal at the time of pledging or giving the lien, together with the amount of
any bill of exchange or promissory note accepted or made by him or her for or on
account of his or her principal, such dealing with the goods or document of title is
not deemed to be theft.

o When a servant, contrary to his or her master’s orders, takes from his or her
possession any food in order that it may be given to an animal belonging to or in
the possession of his or her master, that taking is not deemed to be theft.

Presumption as to ownership of property in some cases.

The Penal code in some aspects presumes ownership as to property in the followin ways;

 Funds, etc. held under direction provided for under 256 PCA that where a person
receives, either alone or jointly with another person, any money or valuable security or a
power of attorney for the sale, mortgage, pledge or other disposition of any property,
whether capable of being stolen or not, with a direction in either case that such money or
any part thereof, or any other money received in exchange for it, or any part thereof, or
 the proceeds or any part of the proceeds of such security, or of such mortgage, pledge or
other disposition, shall be applied to any purpose or paid to any person specified in the
direction, such money and proceeds are deemed to be the property of the person from
whom the money, security or power of attorney was received until the direction has been
complied with.

 Funds, etc. received by agents for sale provided for under section 257 PCA that when a
person receives, either alone or jointly with another person, any property from another on
terms authorising or requiring him or her to sell it or otherwise dispose of it and requiring
him or her to pay or account for the proceeds of the property or any part of such
proceeds, or to deliver anything received in exchange for the property to the person from
whom it is received, or some other person, then the proceeds of the property, and
anything so received in exchange for it, are deemed to be the property of the person from
whom the property was so received, until they have been disposed of in accordance with
the terms on which the property was received, unless it is a part of those terms that the
proceeds, if any, shall form an item in a debtor and creditor account between him or her
and the person to whom he or she is to pay them or account for them, and that the relation
of debtor and creditor only shall exist between them in respect thereof.

 .Money received for another provided for under 258 PCA that when a person receives,
either alone or jointly with another person, any money on behalf of another, the money is
deemed to be the property of the person on whose behalf it is received, unless the money
is received on the terms that it shall form an item in a debtor and creditor account, and
that the relation of debtor and creditor only shall exist between the parties in respect of it.

Other circumstances where theft is committed.

a. Theft by persons having an interest in the thing stolen provided for under section 259
PCA which states that when any person takes or converts anything capable of being
stolen, under such circumstances as would otherwise amount to theft, it is immaterial that
he or she has a special property or interest in that thing, or that he or she is the owner of
the thing taken or converted subject to some special property or interest of some other
person in it, or that he or she is lessee of the thing, or that he or she is one of two or more
joint owners of the thing, or that he or she is a director or officer of a corporation or
company or society who are the owners of it.

Sections 262, 263, 264 and 265 PCA covers certain types of theft whose punishment is
expressly and specifically provided for as opposed to the General punishment section 261 of
the PCA.
Simple Robbery, S. 285 and 286 (1) PCA

The offence is provided for under section 285 of the PCA that the offence is committed where a
person steals and at the time of stealing or immediately before or after uses violence or threatens
to use violence towards any person or property with the aim of obtaining or retaining the thing
stolen.

Ingredients of robbery

a. Theft of anything.

b. Use or threaten to use actual violence to any person or property in order to obtain or
retain the thing stolen immediately before or immediately after the theft.

c. Prevention or resistance of the thing being stolen or retained.

d. Participation of the accused.

Theft

Theft is committed when a person fraudulently and without claim of right takes anything capable
of being stolen or when such person fraudulently converts to the use of any person other than the
general or special owner thereof anything capable of being stolen.

Note that what amount to theft has been covered under section 254 of the Penal Code Act.

Use or threaten to use actual violence to any person or property in order to obtain or retain the
thing stolen immediately before or immediately after the theft.

This ingredient raises the vital questions of what amounts to immediately before or immediately
after? As well as what use of violence to any person means?

Element of immediately before or after.

The word immediate denotes nearness. Something immediate is that occurring or done at once
without anything coming in between. In Gathuri Njuguna Vs R [1965] E.A. 583 vaguely
answered the first question. The appellant stole property from the complainant’s house and was
identified and apprehended after covering a distance of 500 yards. He resisted apprehension and
in so doing hit the complainant with a club. Court said that the essence of the offence of robbery
is an openly committed theft from or in the presence of someone or a theft where the offender is
caught more or less in the act or immediately after the act. That it doesn’t extend to where the
offence was committed clandestinely without discovery or chase until after the offender had left
the premises and had proceeded so far on his way without being discovered to be the thief.
The decision means that theft should be one where the offender is caught more or less in the act.

Use of actual Violence

A.S Hornby, A.P Cowie & A.C Gimson, Oxford Advanced Learner’s Dictionary of Current
English, Oxford University Press, Seventeenth Impression, 1983 defines Violence to mean a state
of using, showing or accompanying an action with great, extreme or severe force. In Uganda v
Private Sekiranda and Another Criminal Session No. 200 of 2006, Justice Lugayizi defined
violence as physical force used so as to injure, extreme roughness of action, or explosively
powerful force or energy. In R Vs Dawson 1976 Crim L. R 692, the Court of Appeal held that
the question of whether or not force has been used is a question of fact to be determined by a
jury. In this case, the accused had nudged the victim causing him to lose his balance so that his
wallet could be more easily taken. His appeal against a conviction for robbery was dismissed. It
therefore appears that very little force is actually required.

In R V Carney, in this case the application of chloroform rag producing momentally

unconsciousness was sufficient violence since it was all the violence that was necessary for the
purpose.

In the process of use or threat to use violence if the offender Prevents or overcome resistance of
the thing being stolen or retained, then robbery may also be proved.

Participation of the accused

In every offence, it is a general requirement that the accused must be proved to have performed
the act constituting the offence i.e. it must be shown that it was the accused’s conduct which
caused those consequences. In this case, it must be shown that the accused participated in the
alleged theft during which he used or threatened violence to any person or property in order to
obtain or retain the thing stolen immediately before or immediately after the theft to the victim.
This is extremely important because criminal law operates in personam and not in rem.

Aggravated Robbery, S. 285 and 286 (2) and (3) PCA as amended

The offence of aggravated robbery is provided for under section 286(2) of the PCA which states
that the offence is committed where a person uses or threatens to use deadly weapon or causes
death or grievous harm to any person immediately before or after or at the time of robbery.

Ingredients of Aggravated Robbery

1. Theft against the victim;

2. Using or threatening to use violence during robbery;

 3. Possession of a deadly weapon at or immediately before or immediately after the theft

4. Causing death of or grievous harm to the victim or any other person during robbery; and

5. Proof of the accused’s participation.

The ingredients of theft, use or threat to use violence and participation of the accused have been
discussed under section 286 (1) of the Penal Code Act. As regards aggravated robbery, the two
additional ingredients are discussed as follows;

Possession of a deadly weapon at or immediately before or immediately after the theft

Section 286 (3) of the PCA as amended defines a deadly weapon to include;

 An instrument made or adapted for shooting, stabbing or cutting, and any imitation of
such an instrument;

 Any substance, which when used for offensive purposes is capable of causing death or
grievous harm or is capable of inducing fear in a person that it is likely to cause death or
grievous bodily harm;

 Any substance intended to render the victim of the offence unconscious.

What amounts to immediately before and after has been discussed under simple robbery.

The amendment introduced some matters which ought to be taken note of viz;

 It’s no longer a requirement to use the deadly weapon. If an offender is in possession of a

deadly weapon, it’s enough to convict him or her.

 Any imitation of such an instrument made or adapted for shooting, stabbing or cutting
constitutes a deadly weapon.

 The use of any substance ounce it is capable of inducing fear in a person that it is likely
to cause death or grievous bodily harm is enough to convict.

 Any substance intended to render the victim of the offence unconscious is also a deadly
weapon.

Causing death of or grievous harm to the victim or any other person during robbery;

This ingredient addresses the question of causation which is very important in criminal law.
Once the prosecution proves that the victim’s or any other person’s death or grievous bodily
injuries during robbery were due to the accused’s actions, then the charge of aggravated robbery
is sustained.
Section 2 (f) of the Penal Code Act defines grievous harm as meaning “any harm which amounts
to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to
injure health, or which extends to permanent disfigurement, or to any permanent or serious injury
to any external or internal organ, membrane or sense.

Section .2 (g) interprets harm as “any bodily hurt, disease or disorder whether permanent or
temporary.” This shows that aggravated robbery need not be done only with deadly weapons.

With regards to causing death, circumstances under which a person is deemed to have caused
death are outlined under section 196 of the PCA.

House Breaking and Burglary, S. 295 PCA

The offence of house breaking is provided for under section 295(1) PCA. It is committed where
a person breaks and enters any building, tent or vessel used for human dwelling with intent to
commit a felony.

The ingredients of the offence as specified in Masenu Butiti v Republic [1967] 1 EA 361 would
include;

a. A breaking and entering,

b. Entering into the buildings used as a human dwelling.

c. The commission of a felony therein.

d. The intention to commit a felony therein.

a) What amounts to breaking and entering?

Under section 294(1) PCA, breaking is defined as including opening by unlocking,

pulling, pushing, lifting anything intended to cover and opening whether external or
internal in a building. Breaking basically refers to interfering with security of a building.

Section 294(2) PCA provides that a person is deemed to have entered a building as soon
as any part of his/ her body or any part of the instrument used by him/ her is within the
building. The element of entering is thus satisfied even where the smallest entry has been
achieved.

It should also be noted that an act would amount to entering under section 294(1) PCA
where the accused person gains entrance either by threat or by collusion with any person
inside the building.

c) Entering into the buildings used as a human dwelling

 House breaking and burglary are only committed in respect of a building, tent or vessel
used for human dwelling.

Section 2(d) PCA defines a dwelling house to includes any building or structure or part of
a building or structure which is for the time being kept by the owner or occupier for his or
her residence or that of his or her family or servants or any of them, and it is immaterial
that it is from time to time uninhabited; a building or structure adjacent to or occupied
with a dwelling house is deemed to be part of the dwelling house if there is a
communication between such building or structure and the dwelling house, either
immediate or by means of a covered and enclosed passage leading from the one to the
other, but not otherwise.

In Masenu Butiti v Republic [1967] 1 EA 361 the appellant was convicted of breaking
into a building contrary and sentenced to two years’ imprisonment carrying with it the
statutory twenty-four strokes of corporal punishment. The evidence in this case
established a breaking of a garage door, no entry being proved or implied. The appellant
was disturbed before any further act took place. He was chased as he escaped and
eventually apprehended. There being no entering nor the commission of a felony inside
the garage, it is immaterial whether a garage could come within the scope of one of the
buildings specified.

Court held that since there was no entry, and, a garage is not generally a warehouse, so
that the conviction was wrong.

d) The commission of a felony therein

In Masenu Butiti v Republic there was no commission of a felony inside the garage and
thus the offence was not proved.

d) The intention to commit a felony therein

For the offence to be committed the accused person must have the intent to commit a
felony within the building and this intent must exist at the time of the felony.

It should be noted that Time the offence of house breaking is committed during day and where
the offence is committed at night, section 295(2) PCA states that the offence then becomes
burglary.

Under section 2(q) PCA night or nighttime time is defined as the interval between half-past six
o’clock in the evening and half-past six o’clock in the morning. It should be noted that where
prosecution cannot establish the exact time, the accused would be convicted of house breaking.

Forgery, S. 342 PCA

Forgery is the making of a false document with intent to defraud or deceive.

The offence of forgery is provided for under section 342 of the PCA which states that the offence
is committed where a person makes a false document with intent to defraud or deceive.

Ingredients

a. The making of a false document;

b. Knowledge that it is a false document;

c. With the Intention to defraud or deceive;

The making of a false document

Under section 345 PCA, a document may be false under various circumstances and these are;

o Actually making a document that purports to be what it is not

o Uttering a document without authority in such a way that if the issuance has been
authorized, it would change the effect of the document

o By introducing material into the document without authority while it is being

drawn up, which material is not authorized and has the effect of altering the
document.

o By signing a document in the name of another person without the person’s

authority or signing a document in the name of a fictitious person who is alleged
to exist.

o Signing in the name of another person with intention to be mistaken as the other
person or signing in the name of a person who is impersonated by the accused.

However it should be noted that when a person signs in the name of another with authority of
that other person or where one alters or introduces material into a document with authority, it is
not forgery.

Wagachira V R [1957] EA 808

The accused altered a receipt from a bicycle shop in order to make it appear that he had lawfully
obtained the bicycle, when in fact he had erased a pencil entry on the receipt referring to the sale
of a bicycle bell and wrote in ink a nonexistent sale of a bicycle in its place. The receipt was a
false document.

Intent to defraud or deceive

The intent to defraud was defined in the case of DPP V Welham, as meaning not only depriving
a person economic advantage but also causing a person to act to his injury or detriment.

Further, section 346 PCA also creates a presumption of intent to defraud. It states that; intent to
defraud exists if it appears that at the time when the false document was made there was in
existence a person capable of being defrauded by it. Therefore this means that the onus of
rebutting this presumption lies with the accused.

In the case of Re London and global finance, it was stated that to deceive is to induce a person to
believe that a thing which is false is true when the person practicing the deceit knows or believes
it to be false.

Uttering a false document, S. 351 PCA

The offence is provided for under section 351 PCA, and it is committed where a person
knowingly and fraudulently utters a false document.

In Kesentse V. The State 1991 Blr 327 (HC), to succeed on a charge of uttering a false,
prosecution must prove, first, that the document was false, secondly, that the accused uttered the
document, and thirdly that the accused uttered the document knowingly and fraudulently.

a. The false document

b. That the document was uttered.

c. The document uttered knowingly and fraudulently

d. The accused is responsible.

False document

Under the Penal Code, false document is not defined but section 345 stipulates that any person
makes a false document where he or she’

 Makes a document purporting to be what in fact it is not.

 Alters a document without authority in such a manner that if the alteration had been
authorised it would have altered the effect of the document.

 Introduces into a document without authority while it is being drawn up matter which if it
had been authorised would have altered the effect of the document.

 Signs a document;
 o In the name of any person without his or her authority whether such name is or is
not the same as that of the person signing;

o In the name of any fictitious person alleged to exist, whether the fictitious person
is or is not alleged to be of the same name as the person signing;

o In the name represented as being the name of a different person from that of the
person signing it and intended to be mistaken for the name of that person;

o In the name of a person personated by the person signing the document, if the
effect of the instrument depends upon the identity between the person signing the
document and the person whom he or she professes to be.

In Civil Appeal No. 64 of 2015 Nsubuga and Another versus Uganda it was held that for the
offence of uttering a false document to stand, the document must tell a lie about itself.

That the document was uttered

Section 2(cc) PCA defines to utter as meaning and including, using or dealing with and
attempting to use or deal with and attempting to induce any person to use, deal with or act upon
the thing in question.

The document uttered knowingly and fraudulently

The term knowingly is also defined in section 2(j) PCA as used in connection with any term
denoting uttering or using, implies knowledge of the character of the thing uttered or used.

Receiving stolen property, S. 314 PCA

The offence is committed where any person receives or retains any chattel, money, valuable
security or other property, knowing or having reason to believe the same to have been
feloniously stolen, taken, extorted, obtained or disposed of and is liable to imprisonment for
fourteen years.

In HCT-04-CR-SC-82-2008 Uganda Versus Nabende Oduch, the Hon. Mr. Justice E.K.
Muhanguzi outlined the essential ingredients of the offence of receiving stolen property
prosecution as being:-

a) Theft;

b) The property should be received or retained.

c) Knowledge by the accused that the property is stolen

 d) Participation of accused in receiving the stolen property.

Proof of theft has been covered in the preceding topics and need not be covered again. Under
section 314 (3) PCA no person, except a person pleading guilty, should be convicted of van
offence under this section unless it shall first be proved that the property which is the subject
matter of the charge has in fact been stolen or feloniously or unlawfully taken, extorted,
obtained, converted or disposed of.

Receiving and retaining

Receipt of the stolen thing is deemed to be present where the property comes into one’s
knowledge or belief that it is stolen i.e. prior knowledge. A person receives stolen property by
acquiring or taking manual possession of it. Physical possession, however, is not always
required. It is sufficient if the accused has exercised control over the property. For example, a
statute may declare that paying for the property constitutes control, regardless of whether the
accused has handled it.

In many jurisdictions a belief that the property is stolen satisfies the knowledge element. It has
been held that a mere suspicion does not constitute knowledge. Some statutes provide that a
person has knowledge if he knows, or has reason to know, that goods are stolen. Another test is
whether a reasonable person would suspect that the property was stolen. Knowledge is
commonly proved by the circumstances surrounding the receipt of the property. For example,
unexplained possession of goods that were recently stolen raises a presumption that the possessor
received them illegally.

In instances where ones receives a stolen property but at the time he or she didn’t have a guilty
mind but later came to know or get knowledge that a property was stolen then he or she is said to
be retaining the stolen property or selling the property after knowing that it was stolen.

Knowledge by the accused that the property is stolen

This ingredients is discussed in the in Mumbi v Republic [1970] 1 EA 345 where the appellant
had been convicted of dishonestly retaining a bedsheet knowing or having reason to believe it
was stolen. She had given an explanation that she had bought it from a named individual known
to the police and who was not called to give evidence.

Held that in the offence of receiving stolen goods the knowledge or reason to believe the goods
to be stolen must relate to the time of their receipt by the accused. In the offence of retaining
stolen goods, the knowledge or reason to believe must relate to the time of the retention removal
disposal or realisation for the benefit of another person.

Under section 314 (4) of the PCA whenever any person is being proceeded against for receiving
or retaining any property, for the purpose of proving guilty knowledge there may be given in
evidence at any stage of the proceedings the following;
  The fact that other property stolen within the period of twelve months preceding the date
of the offence charged was found or had been in his or her possession;

 The fact that within the five years preceding the date of the offence charged he or she was
convicted of any offence involving fraud or dishonesty; However, this fact may not be
proved unless;

o Seven days’ notice in writing has been given to the offender that proof of such
previous conviction is intended to be given; and

o Evidence has been given that the property in respect of which the offender is
being tried was found or had been in his or her possession, and no evidence of the
kind mentioned in this subsection may be given in any proceedings if there is
included in the charge or indictment a count for any offence other than an offence
under the provisions of this section.

What amounts to be in possession of” or “have in possession is explained in section 2 (v) PCA to
mean and includes not only having in one’s own personal possession, but also having anything in
the actual possession or custody of any other person, or having anything in any place (whether
belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other
person; if there are two or more persons and any one or more of them with the knowledge and
consent of the rest has or have anything in his or her or their custody or possession, it shall be
deemed and taken to be in the custody and possession of each and all of them.

What amounts to possession is dicussed in the case of Kateba v Republic [1967] 1 EA 215
where the appellant offered to sell a radio in circumstances which apparently made one of the
persons present, Hamisi, suspicious. Hamisi offered to buy the radio and took it away.
Subsequently Hamisi sought out the appellant and took him to his house, where he collected the
radio and then took it and the appellant to the police station, where the appellant was arrested and
charged with being in possession of property reasonably suspected of having been stolen. He was
convicted and appealed and it was held that the appellant, having parted with possession of the
radio when it was taken from him by Hamisi, was not “in possession” of it when arrested.

The doctrine of recent possession

This doctrine connotes that if a person is found in possession of the stolen property soon after the
theft of it, he or she will be to be presumed either the thief or a person who received the property
with the guilty knowledge that the property was stolen.

The burden of proof on balance of probabilities that he or she is not the thief and did not receive
the stolen property with the guilty knowledge is on the accused.

The doctrine of recent possession was discussed in the Kenyan case of Mahingi V Republic
(1989) KLR 225, stated as follows:
 “By the application of the doctrine the burden shifts from the prosecution to the accused
to explain his possession of the item complained about. He can only be asked to explain
his possession after the prosecution has proved certain basic facts. Firstly, that the item
he has in his possession has been stolen; it has been stolen a short period prior to their
possession; that the lapse of time from the time of its loss to the time the accused was
found with it was, from the nature of the item and the circumstances of the case, recent;
that there are no co- existing circumstances which point to any other person as having
been in possession of the items. The doctrine being a rebuttable presumption of facts is a
rebuttable presumption. That is why the accused is called upon to offer an explanation in
rebuttal, which if he fails to do an inference is drawn, that he either stole or was a guilty
receiver”

Obtaining goods by false pretenses, 305 PCA

The offence is provided for under section 305 where any person who by any false pretence, and
with intent to defraud, obtains from any other person anything capable of being stolen, or
induces any other person to deliver to any person anything capable of being stolen, commits a
felony and is liable to imprisonment for five years.

Ingredients of the offence are discussed in the case Ajambo v Uganda Criminal Appeal no. 23
of 2010

a. That there must be a representation

b. The representation must be false

c. The person making it knows is to be false

d. It must be intended to defraud

e. Delivery of anything capable of being stolen.

f. The accused.

Section 304 defines a false pretense to refer any representation made by words, writing or
conduct, of a matter of fact, either past or present, which representation is false in fact, and
which the person making it knows to be false or does not believe to be true, is a false pretence.

The case of Chamba v Republic [1970] 1 EA 280 explains what amounts to false pretenses.
The appellant through false representations obtained from one Ahmed a cheque for Shs. 2,000/-
drawn in favour of his employer the National Housing Corporation. He falsely represented to the
accounts officials that the cheque was for him. A receipt of Shs. 2,000/- was issued to him. He
then asked the accountant to set off his debt of Shs. 1,500/- to the Corporation and give him the
balance of Shs. 500/- in cash. Before the appellant was paid Ahmed made inquiries about his
cheque. The appellant was arrested and was later convicted on two counts: of attempting to
obtain money from the Corporation by false pretences, and of obtaining goods – a receipt for the
cheque – by false pretences.

On appeal it was contended that the charge was bad as not alleging that the money or goods was
the property of any person, that evidence of false pretences made to Ahmed was inadmissible
and that the evidence showed only an attempt to obtain money from Ahmed and not from the
Housing Corporation.

Held that;

 On a charge of obtaining by false pretences it is not fatal to the charge to omit to state the
ownership of the property;

 The evidence of the false representations to Ahmed were part of the same transaction and
so interconnected as to be admissible;

 The evidence showed that the appellant had made false representations to the Corporation

Another case of Uganda v Mpoya alias Wante & Another criminal session No. 32 of 2012
also discusses what amounts to the offence of obtaining goods by false pretenses.

See the case of Yusuf Omari and another v Republic [1964] 1 EA 162 where the appellants
were convicted of obtaining a bus by false pretences contrary to s. 302 of the Penal Code, by
inducing the owner of the bus to deliver it to the first appellant by falsely pretending that the first
appellant represented the firm entitled to delivery thereof. It was common ground that the bus
was the subject matter of a hire purchase agreement between the owner and a firm and that on
delivery the firm would have obtained possession but not the ownership of the bus. Held that;

The Penal Code must be read as a whole, and, so read, creates an offence of one character only,
that is, one whereby ownership of property is obtained; the words “or induces any other person
to deliver to any person” are merely intended to provide for a situation where the person charged
obtains ownership of anything for a third party by contriving/arranging a delivery either to
himself or someone else;

The words “any person” should be construed as including the person charged.

An offence of obtaining goods by false pretences is not committed if possession only but not
ownership is obtained of the goods.

Cheating, S. 307 PCA

The offence is provided for under section 307 of the PCA which states that any person who by
means of any fraudulent trick or device obtains from any other person anything capable of being
stolen, or induces any other person to deliver to any person anything capable of being stolen or to
pay or deliver to any person any money or goods or any greater sum of money or greater quantity
of goods than he or she would have paid or delivered but for such trick or device, commits a
misdemeanour and is liable to imprisonment for three years.

Cheating is dicussed in the case of Blasius v Republic [1973] 1 EA 510 where the appellant was
convicted of cheating. The prosecution alleged that he had falsely represented to two persons that
he had fish to sell. On receiving Shs. 345/- he entered a building and disappeared. The charge as
laid did not specify the trick or device used by the appellant. It was also contended that he was
not properly identified.

Court noted that every charge of cheating the nature of the trick or device used in perpetrating
the offence must be specified in the particulars of the offence. This in order to enable the accused
to know the nature of the charge that he has to answer.

Court further held that the distinction between obtaining by false pretenses and cheating was
largely obscured. All that is left is that cheating is perpetrated by a trick or device while
obtaining by false pretences depends on a false statement of an existing fact. But considering that
such a false statement may be made by act or conduct, the distinction may be very fine if not
non-existent.

Malicious damage to property. S. 335 PCA

The offence is committed where the person who wilfully and unlawfully destroys or damages
any property and is liable, if no other punishment is provided, to imprisonment for five years.

According to Judge Mubiru in Asega & 4 others v Uganda Criminal Appeal no. 48 of 2011,
the ingredients of the offence would include;

a. Damage or destruction to property

b. Willful and unlawfulness destruction

c. Participation of the accused.

With regard to willfulness, the destruction of the property must be done with intention and as for
unlawfulness, the damage or destruction must be contrary to the law.

Section 335 (2) to (8) of the PCA describes the categories of the property and the punishment
attached to the said categories.
Corruption, 2. Anti-Corruption Act

The offence of corruption is provided for under the Anti- Corruption Act. Under section 2, and it
is committed where a person does any of the following acts;

 The solicitation or acceptance, directly or indirectly, by a public official, of any goods of

monetary value, or benefits, such as a gift, favour, promise, advantage or any other form
of gratification for himself or herself or for another person or entity, in exchange for any
act or omission in the performance of his or her public functions;

 The offering or granting, directly or indirectly, to a public official, of any goods of

monetary value, or other benefit, such as a gift, favour, promise or advantage or any other
form of gratification for himself or herself or for another person or entity, in exchange for
any act or omission in the performance of his or her public functions;

 The diversion or use by a public official, for purposes unrelated to those for which they
were intended, for his or her own benefit or that of a third party, of any movable or
immovable property, monies or securities belonging to the State, to an independent
agency, or to an individual, which that official has received by virtue of his or her
position for purposes of administration, custody or for other reasons;

 The offering or giving, promising, solicitation or acceptance, directly or indirectly, of any

undue advantage to or by any person who directs or works for, in any capacity, a private
sector entity, for himself or herself or for any other person, for him or her to act, or
refrain from acting, in breach of his or her duties;

 The offering, giving, solicitation or acceptance directly or indirectly, or promising of any

undue advantage to or by any person who asserts or confirms that he or she is able to
exert any improper influence over the decision making of any person performing
functions in the public or private sector in consideration of the undue advantage, whether
the undue advantage is for himself or herself or for any other person, as well as the
request, receipt or the acceptance of the offer or the promise of the advantage, in
consideration of that influence, whether or not the supposed influence leads to the
intended result;

 The fraudulent acquisition, use or concealment of property derived from any of the acts
referred to in this section;

 The participation as a principal, co-principal, agent, instigator, accomplice or accessory

after the fact, or in any other manner in the commission or attempted commission of, or
in any collaboration or conspiracy to commit, any of the acts referred to in this section;

 any act or omission in the discharge of his or her duties by a public official for the
purpose of illicitly obtaining benefits for himself or herself or for a third party; or
  Neglect of duty.

The section is well detailed on key definitions of certain words used in the section. Any of the
circumstances ounce proved may lead to the conviction on the charges of corruption.

In the case of Ouma v Uganda criminal Apeal No. 12 of 2013 the term gratification would
include money regardless of the source of money. In this case, money from the Inspectorate of
government was used as a trap. The argument for the appellant was that there were
inconsistencies on where the money originated from.

The case of Mugizi Leonard v Uganda criminal Appeal No. 1 of 2014 discusses what amounts
to solicitation. In that case Soliciting and Receiving as can be seen in section 2(a) of the Anti –
Corruption Act are in the alternative and that once there is a receiving, then Soliciting is
subsumed in the act of receiving.

Note:

 Originally, the offence was provided for under Chapter IX of the Penal Code Act. The
Anti-Corruption Act No. 6 of 2009 was enacted to provide for the effectual prevention of
corruption in both the public and the private sector. The Act repealed and replaced the
Prevention of Corruption Act and consequentially amended the Penal Code Act.

 In July 2008, the Judiciary administratively established the division as a specialized court
to adjudicate corruption and related cases.

 The Act provides for the powers of the Inspector General of Government and the Director
of Public Prosecutions, to order inspection of documents.

Bribery of a public official, S. 5 of the Anti-corruption Act

A person commits an offence of bribery where he or she;

a. Directly or indirectly by himself or herself or through any other person offers, confers,
gives or agrees to offer any gratification to any member of a public body an inducement
or reward so that the member to do any of the following;

o votes or abstains from voting at any meeting of that public body in favour of or
against any measure, resolution or question submitted to that public body;

o Performs, or abstains from performing his or her duty in procuring, expediting,

delaying, hindering or preventing the performance of any official act; or

o Aids in procuring or preventing the passing of any vote or the granting of any
contract or advantage in favour of any person; or
 b. Being a member as is referred to in paragraph directly or indirectly solicits or accepts any
gratification for himself or herself or for any other person, by himself or herself, or
through any other person, as an inducement or reward for any act or abstaining from
performing any act.

Read: Causing financial loss, section 20, False accounting by public officer, section 22,
Embezzlement, section 19 of the Anti-corruption Act.

OFFENCES AGAINST THE STATE

Treason and concealment of treason

The offence is provided for under section 23(1) of the Penal Code Act. It may be committed in
various circumstances which include;

a) Levying war against the state,

b) Unlawfully causing or attempting to cause death of the president,

c) Plotting to overthrow a government established by law using force of arms

d) Unlawful wounding or pointing a gun or any unlawful weapon to the president

e) Where a person aids or abets another in commission of the above acts or becomes an
accessory before or after the fact of the above acts.

f) Concealing any of the above acts

With regard to section 23 (1) of the PCA, the word “any person” is understood to mean only the
citizen of Uganda. However, persons who voluntarily owes allegiance to the government and
lives in Uganda maybe guilty of treason.

Note that refugees do not have any political rights but since he or she is entitled to protection,
charges when committed maybe preferred against him or her. In Joyce v Director of Public
Prosecutions [1946] AC 347, [1946] 1 All ER 186, the appellant was an American Citizen born
in USA in 1906. He stayed in England until 1939 where he applied and was granted a British
passport. He left the country and was arrested din 1945 for being employed by the German radio
as an announcer of English news and broadcasting propaganda on behalf of the enemy. He was
charged of high treason and convicted.

On appeal to the House of Lords, the issue was whether an alien can be convicted of high treason
as committed outside the United Kingdom.
It was held that an alien abroad holding a British passport enjoys protection of the Crown and if
he is adherent to the King’s enemy, he was guilty of High treason so long as he has not
renounced that portion.

Levying war generally means leading and an insurgency against the government with the aim of
usurping the government. And this must be a general one with the object of resisting the
authority of the government. The force should also be accompanied by force.

The punishment of death under treason is justified because on the course of levying war, many
people tend to die.

It should be noted that under section 23(1) (b & d), provides that a person who attempts, aids or
abets or an accomplice commits the offence of treason as well.

The element of intention is provided for under section 23(2) PCA where any person who forms
an intention to effect any of the following purposes;

 To compel by force or constrain the Government as by law established to change its

measures or counsels or to intimidate or overawe Parliament; or

 To instigate any person to invade the Republic of Uganda with an armed force, and
manifests any such intention by an overt act or by any utterance or by publishing any
printing or writing, commits an offence and shall suffer death.

In Uganda versus Yasin Hamis & Moses Ali Session case No. 4 of 1992 the accused were
charged with treason and it was alleged that during the month of March in 1992 carried out a plot
and an over act (meetings) to over throw the government. During these meetings, they planned to
over throw the government. The court held that prosecution must prove that the intention to
commit the offences should have been manifested in the meetings.

In Criminal Session Case No 0477 Of 2010 Uganda versus Okot Alex & 12 others the
accused were charged with treason and concealment of treason. Court noted that in a case of
treason the utterances of an accused at the meeting are key to the overt act. The crime lies in the
words. Mere presence at the meeting is of no evidential value to the act of attendance. Same
position noted Githea v R [1956] 23 EACA 440 where:

“Treason lay in what was said at the meeting and not the meeting themselves”.

In Okot, the court ruled that even if all the accused persons traveled to Nairobi and sat in the
room where the meeting took place, those who uttered nothing would not have committed any
treasonable act. In

Under section 32, an overt act is defined as meaning every act that is in furtherance of the
commission of the offence or even every act of conspiracy.
In Mattaka V R [1971] EA 497, it was found that the overt act was the letters which had been
corresponded between plotters since these established that they had been involved in a
conspiracy to effect treasonable acts.

Terrorism

The Offence of terrorism is provided for under section 7 (1) of the Anti-terrorism Act and is
committed where any person engages in or carries out any act of terrorism.

Under section 7 (2) of the Anti-Terrorism Act, a person commits an act of terrorism who, for
purposes of influencing the Government or intimidating the public or a section of the public and
for a political, religious, social or economic aim, indiscriminately without due regard to the
safety of others or property, carries out all or any of the following acts;

 Intentional and unlawful manufacture, delivery, placement, discharge or detonation of an

explosive or other lethal device, whether attempted or actual, in, into or against a place of
public use, a State or Government facility, a public transportation system or an
infrastructure facility, with the intent to cause death or serious bodily injury, or extensive
destruction likely to or actually resulting in major economic loss;

 Direct involvement or complicity in the murder, kidnapping, maiming or attack, whether

actual, attempted or threatened, on a person or groups of persons, in public or private
institutions;

 Direct involvement or complicity in the murder, kidnapping, abducting, maiming or

attack, whether actual, attempted or threatened on the person, official premises, private
accommodation, or means of transport or diplomatic agents or other internationally
protected persons;

 Intentional and unlawful provision or collection of funds, whether attempted or actual,

with the intention or knowledge that any part of the funds may be used to carry out any of
the terrorist activities under this Act;

 Direct involvement or complicity in the seizure or detention of, and threat to kill, injure
or continue to detain a hostage, whether actual or attempted in order to compel a State, an
international inter-governmental organisation, a person or group of persons, to do or
abstain from doing any act as an explicit or implicit condition for the release of the
hostage;

 Unlawful seizure of an aircraft or public transport or the hijacking of passengers or group

of persons for ransom;

 Serious interference with or disruption of an electronic system;

  Unlawful importation, sale, making, manufacture or distribution of any firearms,
explosive, ammunition or bomb;

 Intentional development or production or use of, or complicity in the development or

production or use of a biological weapon;

 Unlawful possession of explosives, ammunition, bomb or any materials for making of

any of the foregoing.

See Aiding and abetting terrorism, Section 8, Establishment of terrorist institutions under
section 9. See part VIII, which provides for Attempts, Conspiracies and Accessories, Etc.

In High Court Criminal Session Case No 0085 of 2010 Uganda versus Robert Sekabira&
10 Others the defense raised a point of law that the charge under section 7 (1) (b) and 7 (2) of
Anti-Terrorism Act is void for vagueness. It was argued that S7 (2) (c) of the ATA, 2002 does
not clearly define what constitutes the offence of terrorism.

It was further submitted that the rules of statutory interpretation require that legislation must be
interpreted based on the plain meaning of words or phrases used in the law. According to them
the section does not make sense. It does not define the “person” that should be the subject of the
murder, kidnapping, maiming or attack, whether actual, attempted or threatened.

That S7 (2) (c) of the ATA 2002 is vague, obscure, ambiguous and when read in the context of
the rest of the section, it is capable of being understood in two or more ways.

The court held that the section in its present form, offends Article 28 (7) of the Constitution. He
further argued that even if the section was drafted, it would have been inapplicable to the
accused persons.

Do some reading on whether the offence of Sedition is still an offence in Uganda.

OFFENCES AGAINST THE ADMINISTRATION OF JUSTICE (CHAPTER X PCA)

Perjury
Under S.94(1) PCA it is provided that any person who during any judicial proceeding knowingly
gives a false testimony which touches on any matter material to a question pending in the
proceedings or that is intended to be raised in the proceedings commits the offence of perjury.

Under S. 94(2) it is immaterial whether the testimony is given on oath or not or orally or in
writing. S. 94(3) provides for the offence of subornation of perjury, any person who aids, abets,
counsels, procures or suborns another person to commit perjury commits an offence.

The punishment for perjury is that a person is liable for imprisonment of seven years.
Sigh v R 1950 KLR p.81
In Hamraj Lalji Shah v R [1958] 1 EA 332 the appellant was charged of perjury and convicted.
The charges arose out of proceedings in a civil case in which the appellant was the defendant.
The statements which were the subject of the charges of perjury were clearly material issues in
the civil case, and if they were false, they must have been false to the knowledge of the
appellant.

With regard to one count direct evidence of the falsity of the appellant’s testimony was given by
a witness and the magistrate found corroboration in an entry in the appellant’s ledger and in the
evidence of another witness that the appellant’s brother took delivery of the goods.

During the hearing of the appeal the question arose as to whether the appellant was rightly
charged with three offences of perjury in respect of evidence which he gave on the same oath.

It was held that there was sufficient corroboration that the statement charged to have been made
by the accused was false.
It was further held that a person may be convicted of perjury on documentary evidence alone

Contempt Of Court
Article 28(12) of the constitution provides that except for contempt of court, no person shall be
convicted of a criminal offence unless the offence is defined and the penalty prescribed by law.

Under S.107 of PCA it is provided that anyone who within the premises in which any judicial
proceeding and being taken shows disrespect in speech or in conduct in reference to the
proceedings or where any person having been to court fails to attain or without lawful excuse to
be sworn in or answer particular questions or produce any document or where a person dismisses
a servant because of giving evidence, that person commits an offence.

In the case of Uganda V Balaba 1977 HCB 171 the High Court held that remaining seated
when the court rises does not amount to showing disrespect to court or the presiding magistrate
within the meaning of the section.

In Robert Austin Mullery v R [1957] 1 EA 138 the court held that in a prosecution for
contempt of court it is necessary to show that something has been done or published which is
calculated to lower the reputation and authority of the court in the eyes of the public and that in
order to constitute a contempt by libelling a judge it is not sufficient to communicate the libel to
him and to him only.

Under S.103 0f the PCA provided that any person who conspires with another or to do anything
to obstruct, prevents or defeats the course of justice or in order to prevent court of justice
persuades another person from appearing as witness or who interferes with the execution of the
court sentence or order commits an offence.

OFFENCES AGAINST PUBLIC TRANQUILITY.

Libel/Criminal Defamation:
Section 179 provides that any person who by print, writing, painting or by any other means
unlawfully publishes any defamatory matter concerning another person with intent to defame
that other person commits the offence of libel. The key ingredients of the offence are;

1. Publication
2. The matter has to be defamatory
3. The publication must be unlawful.

What amounts to publication?

Publication is provided for under section 181 PCA where it is stated that a person publishes a
libel if he causes the print, writing, painting, effigy or other means by which the defamatory
matter is conveyed to be so dealt with, either by exhibition, reading, recitation, description,
delivery or otherwise, that the defamatory meaning thereof becomes known or is likely to
become known to either the person defamed or any other person.

It is not necessary for libel that a defamatory meaning should be directly or completely
expressed, and it suffices if such meaning and its application to the person alleged to be defamed
can be collected either from the alleged libel itself or from any extrinsic circumstances or partly
by the one and partly by the other means.

Defamation
It is provided for under S. 180 where a defamatory matter is one which has the tendency to injure
the reputation of a person by exposing that person to hatred, contempt, ridicule or that which is
likely to damage another person in his profession by injuring his reputation.

Unlawfulness of the publication

Under section 182 PCA, any publication of defamatory matter concerning a person is unlawful
within the meaning of this Chapter, unless;

 The matter is true and it was for the public benefit that it should be published; or
 It is privileged on one of the grounds mentioned in this Chapter.

Note;
 That privilege of defamatory matter are provided for under sections 183, 184 PCA.
 See section 185 on what amounts to Good faith defined.

Obscene Publications
Under S.166(1) of the PCA any person who for the purpose of or by way of distribution or public
exhibition makes, produces or has in his or her possession anymore obscene writing, drawing,
print, paints, pictures, filming, photographs with the objective of tending to corrupt morals
commits a misdemeanor.

An object will be obscene if its effects taken as a whole tend to corrupt persons who are likely to
read it or hear the matter contained therein having regard to all the circumstances.
The offence applies even where the intended circulation was to occur outside Uganda.

In the case of Batt V R (1960) E.A 654 the charge against the appellant of which he was
convicted alleged that the appellant for the purpose of, or by way of trade, or for the purpose of
distribution or public exhibition had in your possession thirty seven photographs of an obscene
nature which would tend to corrupt the morals of any person into whose hands these publications
are likely to fall.

The main ground of appeal was that the charge was bad for duplicity in that the offence was not
made out by proof of mere possession but it was necessary also to allege and prove that the
possession was for one or other of the purposes set out therein and accordingly the charge must
specify which of the unlawful purposes the appellant was alleged to have had in contemplation

Court held that the particular purpose for which the appellant had the photographs in his
possession should have been averred in the charge and the averment of several purposes in the
alternative made the charge bad in law and the trial a nullity.

Common Nuisance
Under S. 160 of the PCA it is provided that any person who does any act not authorized by law
or omit to discharge a legal duty there by causing danger or annoyance or inconvenience to the
public the exercise of their common rights commits an offence.

It is immaterial that a large number of the public is not inconvenient. It will surface if the Section
of the public is affected. An example of a nuisance is where a person obstructs a highway or a
factory emits toxic substances or smell in such a way to cause serious inconvenience to the
neighbor.

In R V Quinn [1961] 3 All ER 88 keeping a disorderly house for purposes of indecent

performance was held to amount to a common nuisance.

Affray, S. 79 PCA
The offence is provided for under section 79 PCA and committed where any person takes part in
a fight in a public place.

In Republic v Ismael [1968] 1 EA 609 two persons including the appellant were jointly charged
with affray. One of them pleaded and the other not guilty and was subsequently tried and
acquitted.

Court held that the word “fight” implies a combat of two or more persons.

On revision court observed as an orbiter that where one of two accused charged with affray
pleads not guilty and the other pleads guilty a plea of not guilty should be entered for both.

OFFENCES PROVIDED UNDER OTHER LAWS

THE PROHIBITION OF FEMALE GENITAL MUTILATION ACT No. 5 OF 2010.

The Act provides for the prohibition of female genital mutilation, the offences, prosecution and
punishment of offenders and the protection of victims as well as girls and women under threat of
female genital mutilation and to provide for other related matters.
These offences are created under part two of the Act as follows;

Offence of female genital mutilation, section 2.

The ingredients of the offence of genital mutilation include the following;

a. That the victim is a female.

b. That genital mutilation is carried out on the victim.

c. That the accused is responsible for the genital mutilation

Victim being a female

The act does not define who a female is but according to the Longman Dictionary of
contemporary English, the term female refers or relates to a woman or girl or the sex that can
give birth to young or produce eggs. This in contrast with the male, which refers to men or boys
as well as a sex that fertilizes eggs and does not produce babies or eggs itself.

Therefore victim relates to only female as one of the ingredients.

That genital mutilation is carried out on the victim.

Under section 1 of the Act, female genital mutilation refers to all procedures involving partial or
total removal of the external female genitalia for non-therapeutic reasons.

The term non-therapeutic is the opposite of therapeutic, where the latter is the branch of
medicine concerned with the treatment of diseases and the action of remedial agents. In other
wards, therapeutic refers to a treatment, therapy or drug.

Joe Strauss in his article on Non-Therapeutic or Therapeutic stresses that a therapeutic

procedure is intended to treat a disease or condition or the symptom of one. A non-therapeutic
procedure is intended to increase the level of health and wellbeing of the individual.

To appreciate whether a service or procedure is therapeutic or non-therapeutic is difficult

because many services and procedures can be used in either way, depending on the intent of the
provider and/or the desire of the receiver (Joe).

However, four criteria have been identified to determine whether a procedure is non-therapeutic
or therapeutic;
 1. Is the procedure is strictly a health-promoting procedure? Under this criteria, if health is
the harmonious function of all the body’s organs and parts, then any procedure that is
used solely for disease treatment or prevention is a therapeutic as opposed to non-
therapeutic.

2. The second parameter is that Non-therapeutic procedures can be done for a “healthy”
person. By “healthy,” it means that someone who has no apparent problems and not
suffering from a physical illness and is not having the procedure or service for a
therapeutic reason.

3. Non-therapeutic approaches are aimed at either enabling the inborn wisdom of the body
to utilize material (good food) or activity (exercise) to improve the quality of the matter
of the body or remove an interference to the full expression of the body. A therapeutic
procedure attempts to change the quality or the quantity of the matter of the body to
conform to the professional’s preconceived idea of what the body should be. A
therapeutic approach assumes that the professional knows what the material of the body
should look like or what characteristic it should exhibit. A non-therapeutic approach
makes no such assumptions.

4. Lastly, the procedure does not reflect upon the practitioner but upon the innate
intelligence of the body. A therapeutic procedure reflects upon the therapist. He or she
determines the need, administers the procedure to bring about the change and then
determines that his or her assistances brought about the desired result. The non-
therapeutic procedure, on the other hand, makes no such judgments.

Therefore, for the offence to stand, the removal of female genitalia must be for non-therapeutic
reasons.

Participation of the accused for the genital mutilation

In all criminal cases, the participation of the accused person in the commission of the offence
applies to all offence and the provisions of sections 6 of the Act as well as section 19 of the Penal
Code Act Cap 120 may should be invoked to establish the different levels of participation.

Aggravated female genital mutilation, section 3

The section outlines what amounts to aggravated female genital mutilation where;

a. Death occurs as a result of female genital mutilation;

b. The offender is a parent, guardian or person having authority or control over the victim.
Under this category section 1defines person in authority to mean a person having power
and control over other people because of his or her knowledge and official position; and
includes a person who exercises religious, political, economic or social authority.
 c. The victim suffers disability where the disability means a substantial functional limitation
of daily life activities caused by physical, mental or sensory impairment and environment
barriers resulting in limited participation;;

d. The victim is infected with HIV as a result of the act of female genital mutilation; or

e. Female genital mutilation done by a health worker where the Health worker means a
person qualified in the promotion of health, the prevention of disease and the care of the
sick and who is registered and enrolled under the Medical and Dental Practitioners Act,
the Nurses and Midwives Act and the Allied Health Professionals Act.

The other offences provided under the Act are;

Carrying out female genital mutilation on oneself. Section 4 provides that a person who
carries out female genital mutilation on herself commits an offence and is liable on conviction to
imprisonment not exceeding ten years.

Attempt to carry out female genital mutilation. Section 5 provides that any person who
attempts to carry out female genital mutilation commits an offence and is liable on conviction to
imprisonment not exceeding five years.

The Act introduced some matters which ought to be taken note of viz;

a. That any culture, custom, ritual, tradition, religion or any other nontherapeutic reason
shall not be a defence to female genital mutilation.

b. Non-discrimination against or stigmatization of a female who has not undergone female

genital mutilation from engaging or participating in any economic, social, political or
other activities in the community. Section 11 creates an offence for any person who
contravenes the provision.

c. Protection of persons whose wives, daughters or relatives have not undergone female
genital mutilation. Section 12 creates an offence for violation of the provision.

d. The convict may be ordered to pay compensation to victim in addition to the punishment
provided. The order for compensation is deemed to be a decree under the Civil Procedure
Act, and can be executed in the manner provided there under.

e. Section 15 of the Act provides for Extra-territorial jurisdiction where it applies to

offences committed outside Uganda where the girl or woman upon whom the offence is
committed is ordinarily resident in Uganda.

f. The Act impose a duty on any person who knows to report female genital mutilation
within 24 hours from the time of having knowledge of the same and creates an offence on
failure to report.
THE ANTI-MONEY LAUNDERING ACT, 2013 (AS AMENDED) BY ACT 3 OF 2017

The Act provides for the prohibition and prevention of money laundering, the establishment of a
Financial Intelligence Authority and a Financial Intelligence Authority Board in order to combat
money laundering activities.

Part two of the Act criminalizes the laundering of proceeds of crime and Section 3 outlines what
is prohibited as money laundering if any person intentionally does the following;

a. Convert, transfer, transport or transmit property, knowing or suspecting that such

property to be the proceeds of crime, for the purpose of concealing or disguising the illicit
origin of the property or of assisting any person who is involved in the commission of the
crime generating the proceeds to evade the legal consequences of his or her actions.

b. Conceal, disguise or impede the establishment of the true nature, source, location,
disposition, movement or ownership of or rights with respect to property, knowing or
suspecting that such property to be the proceeds of crime.

c. Acquire, possess, use or administer property, knowing, at the time of receipt, that the
property is the proceeds of crime.

d. Act to avoid the transaction reporting requirements provided in Part III of this Act; or Act
Anti–Money Laundering Act 2013.

e. Assist another to benefit from known proceeds of crime or use known proceeds of crime
to facilitate the commission of a crime.

f. Participate in, associate with, conspire to commit, attempt to commit, aid and abet, or
facilitate and counsel the commission of any of the acts money laundering above
described.

The offences are provided for under PART VII of the Act.

Section 16 of Act No. 3 of 2017 amends section 116 of the Principle Act to create the offence of
Offence of money laundering.

Offence of money laundering, Section 116.

It provides that a person who engages in any act of money laundering prohibited in section 3,
commits an offence. Any of the acts if done by an individual as provided under section 3 of the
Act would constitute an offence.

Tipping-off, section 117.

The section provides that it is an offence for an employee, officer, director or agent of any
accountable person to notify a person, other than a court, competent authority or other person
authorised by law, that information has been requested or furnished or reported or submitted to
the Authority under to this Part.

The accountable person

Means any person listed in the Second Schedule to the Act and includes;
1. Advocates as defined in the Advocates Act notaries licensed and certified under the
Notaries Public Act, accountants as defined in the Accountants Act, and other
independent legal professionals and accountants.
2. A board of executors or a trust company or any other person that invests, keeps in safe
custody, controls, or administers trust property within the meaning of the Trustees Act.
3. Casinos (which also includes internet casinos).
4. Real estate agents.
5. Dealers in precious metals and gems.
6. Trust and company service providers not covered elsewhere in this Schedule which as a
business provide any of the following services to third parties:
a. Acting as a formation agent of legal persons.
b.
c.
d. Acting as (or arranging for another person to act as) a director or secretary of a
company, a partner of a partnership, or a similar position in relation to other legal
persons.
e. Providing a registered office, business address or accommodation, correspondence or
administrative address for a company, a partnership or any other legal person or
arrangement.
f. Acting as (or arranging for another person to act as) a trustee of an express trust.
g. Acting as (or arranging for another person to act as) a nominee shareholder for
another person.
7. A financial institution as defined in the Financial Institutions Act.
8. A broker, dealer or investment advisor licensed under the Capital Markets Authority Act.
9. An insurance company licensed under the Insurance Act.
10. Registrars of Companies.
11. Registrars of Land.
12. The Uganda Investment Authority.
13. All licensing authorities in Uganda.
14. Any other person who conducts the business of:
a. Acceptance of deposits and other repayable funds from the public including private
banking.
b. Lending including, inter alia, consumer credit, mortgage credit, factoring with or
without recourse, and finance of commercial transactions.
c. Financial leasing (not including financial leasing arrangements in relation to
consumer products).
d. The transfer of money or value.
e. issuing and managing means of payment e.g., credit and debit cards, cheques,
traveler’s checks, money orders, bankers’ drafts, electronic money.
f. Financial guarantees and commitments.
g. Trading in.
 i. Money market instruments (cheques, bills, CDs, derivatives, etc.).
ii. Foreign exchange.
iii. Exchange, interest rate and index instruments.
iv. Transferable securities.
v. commodity futures trading;
h. Participation in securities issues and provision of financial services related to such
issues.
i. Individual and collective portfolio management.
j. Safekeeping and administration of cash or liquid securities on behalf of other persons.
k. Otherwise investing, administering or managing funds or money on behalf of other
persons.
l. Underwriting and placement of life insurance and other investment related insurance,
including non-life insurance business.
m. Money and currency changing.
15. Non-governmental organizations, churches and other charitable organizations.

Authority.

Under section 1 of the Act, Authority means the Financial Information Authority established
under Part IV.

Falsification, concealment, etc of documents, section 118.

Where a person falsifies, conceals, destroys or otherwise disposes of or causes or permits the
falsification, concealment, destruction or disposal of any document or material which is or is
likely to be relevant to an investigation into money laundering or is subject to any order made in
accordance with provisions of this Act, commits an offence.

For the offence to be committed there should;

a. A document or material

b. The document or material should be relevant to an investigation

c. The investigation must be into money laundering or subject to any of the orders made
under the Act i.e. Production Orders, Monitoring orders, Restraining orders, Confiscation
order on conviction and Pecuniary penalty orders.

d. The document or material must have been destroyed.

Offences created in contravention of Money Laundering Prevention measures under part

III of the Act.

These offences are provided for under sections 119 to section 127 of the Act. They include the
following;
 1. Section 119 relates to Failure to identify persons by an accountable person in
contravention of section 6 (b).

2. Section 120 provides for Failure to keep records in contravention of section 7 section.

3. Section 121 relates to Facilitating money laundering in contravention of section 16.

4. Section 122 provides for Destroying or tampering with records in contravention of

section 6 of the Act. However, if the destruction or tampering in not in contravention of
section 7, the accused may not be liable.

5. Section 123 provides for the Refusal, omission, neglect or failure to give assistance to the
authority in contravention of section 11.

6. Section 124 provides for Failure to report cash transactions to the Authority in
contravention of section 8 of the Act.

7. Section 125 provides for Failure to report suspicious or unusual transaction to the
Authority in prescribed from in contravention of section 9.

8. Section 126 provides for Failure to report conveyance of cash into or out of Uganda to
customs and excise department of the Uganda Revenue Authority or who intentionally
files a false notification regarding the cross-border transportation in contravention of
section 10.

9. Section 127 provides for Failure to send a report to authority in contravention of section
10(b) of Part III.

The other offences provides under the Act include the following;

a. Section 128 provides for Failure to comply with orders made under Part VI of the Act
without reasonable cause or knowingly produces false or misleading information in
compliance with the order.

b. Section 129 provides for contravening a restraining order issued under section 73 of Part
VI, by disposing of or otherwise dealing with the property that is subject to the
restraining order.

c. Section 130 provides for Misuse of information by disclosing confidential information

held by or obtained from the Authority otherwise than in accordance with section 38 and
further intentionally destroys or in any other way tampers with the information kept by
the Authority as well as using the information obtained from the Authority otherwise than
in accordance with section 38.

d. Section 131 provides for Obstructing an official in performance of functions by

obstructing, hindering or using physical force, threating or intimidating to interfere with a
 judge of the court or an authorized officer in the performance of the duties or the exercise
of the powers in terms of this Act.

e. Section 132 provides for Influencing testimony by using physical force, threating or
intimidating or promising, offering giving of an undue advantage to induce false
testimony or to interfering in the giving of testimony or the production of evidence in a
proceeding in relation to the commission of offenses under this Act.

f. Section 133 provides for General non-compliance with requirements of act and
conducting transactions to avoid reporting duties where person who conducts, or causes
to be conducted, one or more transactions with the purpose, in whole or in part, of
avoiding giving rise to a reporting duty under this Act.

g. Section 134 provides for unauthorized access to computer system or application or data
without authority to do so, willfully accesses or causes any other person to access any
computer system that belongs to, or is under the control of, the Authority, or any
application or data held in such a computer system.

h. Section 135 provides for unauthorized modification of contents of computer system

without authority to do so, willfully causes a computer system that belongs to, or is under
the control of, the Authority, or any application or data held in such a computer system,
to be modified, destroyed, erased or the operation or reliability of such a computer
system, application or data to be otherwise impaired.

Matter introduced by the Act that ought to be taken note of include;

1. Establishment of Financial Intelligence Authority under PART IV of the Act spelling out
its Objectives, Functions and General Powers.

2. The seizure, freezing and forfeiture of assets in relation to money laundering under part V
and various orders that may be issued to obtain such orders.

3. The Act introduces the International Co-operation under Part VI where the Uganda may
relate with other states in various circumstances to give effect to the said Act.

THE DOMESTIC VIOLENCE ACT, ACT No. 3 OF 2010.

The Act among others provides for the protection and relief of victims of domestic violence and
for the punishment of perpetrators of domestic violence.

The offence of domestic violence is provided for under part II of the Act, which deals with
control of domestic violence.
Prohibition of domestic violence, section 4.
Section 4 (1) of the Act prohibits any person in a domestic relationship to engage in domestic
violence.

The offence is created under section 4 (2), which provides that a person in a domestic
relationship who engages in domestic violence commits an offence and is liable on conviction to
a fine not exceeding forty eight currency points or imprisonment not exceeding two years or to
both.

For the offence to be committed, the following ingredients ought to be established;

a. That a person is in a domestic relation.

b. That the person engages in domestic violence.

Domestic relation

Section 2 of the Act defines domestic relationship with reference to section 3 means a family
relationship, a relationship similar to a family relationship or a relationship in a domestic setting
that exists or existed between a victim and a perpetrator and includes a relationship where;

a. The victim is or has been married to the perpetrator.

b. The perpetrator and the victim are family members related by consanguinity, affinity or
kinship.
c. The perpetrator and the victim share or shared the same residence.
d. The victim is employed by the perpetrator as a domestic worker or house servant and the
victim does or does not reside with the perpetrator.
e. The victim is an employer of the perpetrator and does or does not reside with the
perpetrator.
f. The victim is or was in a relationship determined by the court to be a domestic
relationship.

In order for the court to make a determination whether the victim is or was in a relationship of
domestic relationship, the following considerations should be followed;

a. The legal nature of the relationship.

b. The amount of time the persons spend together.
c. The place where the time is ordinarily spent
d. The manner in which that time is spent.
e. The duration of the relationship.

Domestic violence.
According to section 2 of the Act, domestic violence constitutes any act or omission of a
perpetrator of the following;
 a. Harms, injures or endangers the health, safety, life, limb or well-being, whether mental or
physical, of the victim or tends to do so and includes causing physical abuse, sexual
abuse, emotional, verbal and psychological abuse and economic abuse.

b. Harasses, harms, injures or endangers the victim with a view to coercing him or her or
any other person related to him or her to meet any unlawful demand for any property or
valuable security.

c. Has the effect of threatening the victim or any person related to the victim by any conduct
mentioned in paragraph (a) or (b).

d. Otherwise injures or causes harm, whether physical or mental, to the victim.

The Act defines economic abuse, emotional, verbal and psychological abuse, Harass,
Intimidation, Perpetrator, Physical abuse, Sexual abuse and Victim.

Economic abuse means the following;

a. Deprivation of all or any economic or financial resources to which the victim is entitled
under any law or custom, whether payable under an order of a court or otherwise or
which the victim requires out of necessity including, but not limited to;

i. Household necessities for the victim and his or her children, if any.
ii. Property, jointly or separately owned by the victim.
iii. payment of rent related to the shared household and maintenance;

b. Disposal of household effects, alienation of assets whether movable or immovable,

shares, securities, bonds or similar assets or property in which the victim has an interest
or is entitled to use by virtue of the domestic relationship or which may be reasonably
required by the victim or his or her children or any other property jointly owned or
separately held by the victim.

c. Prohibiting or restricting access to resources or facilities which the victim is entitled to

use or enjoy by virtue of the domestic relationship, including access to the shared
household.

Emotional, verbal and psychological abuse means a pattern of degrading or humiliating conduct
towards a victim, including but not limited to;
a. Repeated insults, ridicule or name-calling.
b. Repeated threats to cause emotional pain.
c. The repeated exhibition of possessiveness or jealousy which is such as to constitute a
serious invasion of the victim’s privacy, liberty, integrity or security.
d. Any act or behaviour constituting domestic violence within the meaning of this Act
where it is committed in the presence of a minor member of the family and which is
considered as abuse against the minor member and likely to cause him or her injury
Harass refers engaging in a pattern of conduct that induces fear of harm, annoyance and
aggravation with the intention of inducing fear in a person including;

a. Repeatedly watching or loitering outside of or near the building where the victim resides,
works, carries on business, studies or happens to be.
b. Repeatedly making abusive telephone calls or causing another person to make abusive
telephone calls to the victim, whether or not a conversation ensues.
c. Repeatedly sending, delivering or causing the delivery of offensive or abusive letters,
telegrams, packages, facsimiles, electronic mail, telephone text messages or similar
objects to the victim.
d. Repeatedly following, pursuing or accosting the victim with the intention of inducing
fear, harm, annoyance or aggravation to the victim;

Intimidation means uttering a threat or causing a victim to receive a threat, which induces fear

Perpetrator refers a person who is alleged to commit an actual or threatened act of domestic
violence

Physical abuse means any act or conduct which is of such a nature as to cause bodily pain, harm
or danger to life, limb, or health or which impairs the health or development of the victim; and
includes assault, criminal intimidation and criminal force

Sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or
otherwise violates the dignity of another person

Victim refers to a person in a domestic relationship who directly or indirectly suffers threatened
or actual domestic violence.

Matters to take note of under the Act.

1. Section 5 provides that consent of the victim is not a defence to a charge of domestic
violence.

2. Under section 6, a complaint of domestic violence may be made to a local council court
where the victim or perpetrator resides where the following orders may be issued against
the perpetrator caution, apology to the victim, counselling, community service, a fine not
exceeding twenty five currency points, compensation, reconciliation, declaration,
restitution, attachment and sale or any other order provided for under the Local Council
Courts Act, 2006.

THE PREVENTION OF TRAFFICKING IN PERSONS ACT NO 7 OF 2009.

The Act provides for the prohibition of trafficking in persons and creates offences as well as
prosecution and punishment of offenders. It provides for the prevention of the vice of trafficking
in persons, protection of victims of trafficking in persons, and other related matters.
The offence are created under part II of the Act.

Offence of trafficking in persons, section 3.

The offence is committed where the person whether natural or legal does any of the following;

a. Recruits, transports, transfers, harbours or receives a person, by means of the threat or use
of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of
power or of a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another person, for the
purpose of exploitation;

b. Recruits, hires, maintains, confines, transports, transfers, harbours or receives a person or

facilitates the aforementioned acts through force or other forms of coercion for the
purpose of engaging that person in prostitution, pornography, sexual exploitation, forced
labour, slavery, involuntary servitude, death bondage, forced or arranged marriage.

Note;
Section 3 (3) states that the recruitment, transportation, transfer, harbouring or receipt of a child
for the purpose of exploitation shall constitute “trafficking in persons” even if it is not mentioned
under subsection (1) of this Section 3.

Aggravated trafficking in persons, section 4.

Aggravated trafficking is committed by the person if any of the following occurs.

a. That the victim of trafficking is a child.

b. That adoption, guardianship, fostering and other orders in relation to children is
undertaken for the purpose of exploitation.
c. That the offence is committed by a syndicate, or on large scale.
d. That the offender is an organization engaged in the activities of organizing, directing or
protecting the vulnerable persons in society.
e. That the offender is engaged in organizing or directing another person or persons to
commit the offence.
f. That the offence is committed by a close relative or a person having the parental care,
authority or control over the victim or any other person.
g. That the offence is committed by a public officer.
h. That the offence is committed by military personnel or law enforcement officer
i. where the person organizes, facilitates or makes preparations for the kidnapping,
abduction, buying, selling, vending, bringing from or sending to, receiving, detaining or
confining of a person for purposes of harmful rituals or practices, human sacrifice,
removal of any body part or organ, or any other act related to witchcraft.
j. Where the victim dies, becomes a person of unsound mind, suffers mutilation, and gets
infected with HIV / AIDS or any other life threatening illness.

The other offences under the Act include;

 1. Section 5 provides for aggravated Trafficking in children where a person does any act
referred to under Section 3 in relation to a child where he or she;
a. Uses a child in any armed conflict.
b. Removes any part, organ or tissue from the body of a child for purposes of human
sacrifice;
c. Uses a child in the commission of a crime;
d. Abandons a child outside the country.
e. Uses a child or any body part of a child in witchcraft, rituals and related practices.

2. Section 6 provides for Engaging the Labour or Services of a Victim of Trafficking in

Persons if a person who while knowing or having reason to believe that a person is a
victim of trafficking, engages the labour or services of that victim in that status.
.
3. Section 7 provides for Promoting Trafficking in Persons where any person;
a. Knowingly leases or subleases, uses or allows to be used any house, building or
establishment for the purpose of exploitation.
b. Produces, prints, issues or distributes, any document or information of any
Government agency, which relates to immigration, for purposes of trafficking.
c. Tampers with, or falsifies any government or government agency’s document or
information relating to the immigration regulations or requirements.
d. Utters or aids any person to utter any false document relating to immigration for the
purpose of facilitating that person’s entry or stay in Uganda, or exit from the country.
e. Gives or facilitates the giving of false information to any authority for the purpose of
enabling the entry, stay in Uganda, or exit from the country of any person.
f. Advertises, publishes, prints, broadcasts, distributes or causes the advertisement,
publication, printing, broadcasting or distribution by any means, including the use of
information technology and the internet of any pornographic or other material
intended or likely to facilitate trafficking in persons.
g. In any way engages in the selling or buying of persons.
h. Recruits, transports, transfers, harbours or receives a child for any purpose without
authority of the parent or guardian of such a child; except that this provision shall not
apply where the recruitment, transportation, transfer, harbouring or receipt is done
lawfully, in good faith and in the best interests of the child.
i. Abandons a child in circumstances likely to cause fear, isolation, injury, pain or other
harm.
j. To facilitate the trafficking of that child;

4. Section 8 provides for Offences Related to Trafficking in Persons where a person;

a. Attempts to traffic in persons.
b. Conspires with another person to do an act of trafficking in persons.
c. Recruits, transports, transfers, harbours, provides or receives a person for domestic or
overseas employment or training or apprenticeship with the intention of trafficking.
d. Recruits a person below 16 years in any form of employment for the purposes of
exploitation.
e. Introduces or matches any person to another for purposes of sexual exploitation.
 f. Confiscates, conceals, or destroys a passport, travel documents, or other personal
documents or belongings of a person for the purpose of unlawfully denying that
person freedom of movement, or access to any public services.
g. Adopts or facilitates the adoption of a person for illicit purposes.

5. Section 9 provides for Failure to Disclose Conviction where a person who, having been
convicted of a trafficking offence under this Act fails to disclose that conviction;

a. When applying for employment which places him or her in a position of authority or
care of children.
b. When offering or agreeing to take care of or supervise children.

6. Section 10 (2) provides for a Duty to Report Trafficking in Persons by every member of
the community who knowing or having reason to believe that a person has committed or
intends to commit an offence and does not report to police or other relevant authority.

Matter that should be taken note of under the Act.

1. Section 13, which provides for The Confidentiality where law enforcement officers,
prosecutors, judicial officers and medical practitioners, as well as parties to the case are
enjoined to recognize the right to privacy of the victim of trafficking.

2. Section (3) creates an offence where any editor, publisher, and reporter or columnist in
case of printed materials, announcer or producer in case of television and radio, producer
or director of a film in case of the movie industry, or any person utilizing trimedia
facilities or information technology publishes or causes publicity of the names and
personal circumstances or any other information tending to establish the victim’s identity
without authority.

3. Section 14 provides for Repatriation of Victims of Trafficking in Persons where the

Minister in cooperation with the appropriate government agencies is responsible for the
facilitation of repatriation of victims of trafficking in persons to and from Uganda.

4. Section 19 provides for Extra-Territorial Jurisdiction where the Act applies to offences
committed outside Uganda in any of the following circumstances;

a. Where a person who, while being a citizen of, or permanently residing in Uganda,
commits an act outside Uganda, which act would constitute an offence had it been
committed in Uganda.

b. Where the victim was a citizen of Uganda at the time of commission of the
offence.

c. Where the offence was committed partly inside and partly outside Uganda.
d. Where a substantial proportion of the effects of the offence have occurred or
taken place within the territory of Uganda.
Provided that;
e. No proceedings shall be instituted under this section without the written consent
of the Attorney General.

f. If the consent of the Attorney General is received under, proceedings may be

instituted in any appropriate court and such court with the jurisdiction to try the
matter as if the offence or offences had been committed within its jurisdiction.

g. A person shall not be tried for an offence under this section if that person has been
acquitted or convicted of the same offence in another country.