COMPETENCE OF WITNESSES

Competence refers to the capacity of a person to give evidence. Not all people have that capacity, e.g. old people, insane, children, etc.

Compellability means whether a particular witness can be subjected to the compulsory process of court to induce him to testify, i.e. can that person be summoned? If such person refuses, can he be arrested and imprisoned for contempt of court? Sometimes not all witnesses are compellable especially if they enjoy certain privileges.

COMPETENCE OF WITNESSES

Rules governing competence

S.117- The general rule is that all persons are competent unless they suffer from a certain disability. All persons shall be competent unless the court considers that they are prevented from understanding questions put to them or from giving rational answers to those questions put to them or from giving rational answers to those questions by tender years, or extreme old age, disease of body/mind or any other cause of the same kind. A lunatic is not incompetent to testify unless he is prevented by his lunacy from understanding the question rational answers thereto.

Competence of special categories of witnesses

1. Dumb witnesses

A dumb witness (one who is unable to speak) may still be a competent witness. Being a deaf mute does not render a person incompetent per se. He may give his or her evidence in any other manner in which he can make it intelligible as by writing or signs but such writing but such writing must be written and the signs must be made in open court. Evidence so given shall be deemed to be oral evidence as in the case of:

Hamisi s/o Balum v R

Facts: This case involved a deaf mute witness who would, however, make some noises. He was called as a witness and the trial Magistrate allowed this. The witness gave evidence with the help of a sister who said that she understood the noises. The sister was then sworn in as an interpreter. The case went on appeal because of the witness’s form of evidence and the use of the sister as an interpreter.

Held: Court of Appeal- Such a witness was competent but in this case, the method of interpretation was so crude that the witness should not have been allowed to give evidence. Where there is need for interpretation, an expert should be called; the sister could have been biased.

2. Accused persons

An accused person is a competent witness for the defence or for himself, but he is not compellable to give evidence at his trial. There are a number of options at his trial. He can give evidence on oath by way of application; where he does so, the prosecution can examine him. Cross examination is the only time during which an accused person may be compelled to answer questions. See s.131. In practice, whether an accused gives sworn evidence or not, should not be used against him in judgment.

3. Accomplices

An accomplice is one charged with, but not for the same offence as the accused. An accomplice is a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. In practice, however, few courts convict on uncorroborated evidence of an accomplice. During trial, when a witness other than the accused stands before court, such evidence must be on oath. See s.12 of the Oaths Act.

4. Spouses

S.120 of the Evidence Act. In criminal proceedings, the following provisions shall have effect:

S. 120 (1) (b) - The wife or husband of the accused shall be a competent and compellable witness for the defense and whether the accused is charged alone or jointly with another person. The rationale for this is to protect the confidentiality in marriage, i.e. any marriage recognized by the laws of Uganda.

In ss120 (2) and 121, the terms ‘husband’ and ‘wife’ mean respectively the husband and wife of a subsisting marriage as such under any written or customary law. The principle laid down in R v Amkeyo was changed in the case of Alai v Uganda where it was sought to use evidence of the accused’s wife. Court recognized her as a wife and she could not therefore testify against her husband. Because of this ruling, s.120 was amended to have s.120 (2).

As to whether spouses can testify against each other is still a big question, e.g. in Kenya, where the spouse is being charged with bigamy, incest or any moral offence, stealing property of the spouse, a spouse may be compelled.

English cases, however, have applied these instances selectively:

R v Lockworth [1931] 1 KB 117

Facts: The husband was accused of inflicting grievous bodily harm on the accused. The wife was called to testify against her husband and she refused.

Held: When a husband is indicted for inflicting harm on the wife, she is a compellable witness for both the defense and the prosecution. If she refuses continuously, she is incompetent in court.

Hoskyns v Metropolitan Police [1912] AC 474

Facts: The wife was unwilling to testify against her husband.

Issue: whether or not the wife could be compelled to testify against her husband despite her unwillingness?

Held: She could not be compelled to testify against her husband even if she is the one on whom the harm was inflicted.

In civil proceedings, however, spouses are both competent and compellable. S. 121 of the Evidence Act- In civil proceedings, the parties to the suit and the husband and wife of any party to the suit shall be competent and compellable witnesses.

5. Children of tender years

All persons are competent to testify, however, under s.117 of the Evidence Act, a child of tender years may not be a competent witness if by reason of his or her age, the child cannot understand the questions put to him or her, or if s/he cannot answer rationally. For this category, they may not always be considered as competent witnesses. There is no statutory definition of who a child is, but a number of cases have considered this:

Kibagenyi v R

Facts: The appellant was appealing against a conviction for murder. The main evidence against him at the trial court had been given by his 2 sons, one aged between 12-14 years and the other between 9-10 years. He challenged the admissibility of their evidence on the grounds that they were children of tender years and therefore incompetent witnesses.

Held: The phrase ‘child of tender years’ refers to any child of the average or apparent age of 14 years. Whether or not a particular child is of tender years depends on the good sense of court.

Omukono v Uganda [1979] HCB 171

Procedure of court with regard to child witnesses

Where the court is faced with a child witness, it is expected to voire dire, which involves an attempt to determine if the child understands the nature of an oath, whether the child has sufficient capacity or intelligence to give reliable evidence and whether the child knows the duty of telling the truth, i.e. can the child distinguish right from wrong or even know the consequences?

Uganda v Oloya s/o Omoke [1977] HCB 4

Held:

i) When a court is confronted with a child of tender years as a witness, it should question the child whether s/he understands the nature of an oath. If court finds that the child does not understand the nature of an oath, it may not allow the child to give evidence.

ii) If the child understands, the child may give sworn evidence. If the court does not allow the child to swear, it is up to the court whether in its opinion, the child is possessed of sufficient intelligence, to justify the reception of his or her evidence and whether the child understands the duty to tell the truth.

iii) Special note must be taken that where a child is a prosecution witness, the court should also direct itself that the child’s evidence needs corroboration, but in all cases of child witnesses, court must conduct a voire dire. If court does not, that is a good ground for appeal and quashing such evidence.

If a child gives unsworn evidence, it must be corroborated. However, in practice, all evidence given by children must be corroborated. The rationale is to ensure the reliability of their evidence. If they cannot swear, they must affirm that they will tell the truth and nothing but the truth. If a child witness gets tongue-tied ordinarily, the advocate or person representing the child may ask for an adjournment.

See s.12 of the Oaths Act.