Uganda V Hajji Elisa Namunyu (RIP) and 5 Ors USC (Criminal Appeal No.49 of 2020): The Significance of Plea Taking in Criminal Proceedings and The Right to a Fair Hearing.

In a landmark decision handed down by the Supreme Court of Uganda on January 17, 2024, the case of Uganda v Hajji Elisa Namunyu & 5 Ors This landmark decision sheds light on two fundamental aspects of criminal proceedings:

Significance of Plea Taking:

The court emphasized the pivotal role of plea taking in criminal trials. That, "substantive justice requires that the anomaly pointed out in the process of plea taking be overlooked in favour of the wider cause of substantive justice; that it would be expecting too much to demand that all trials must run like clockwork, short of which they would result in nullification of the entire trial.

The coram of five Supreme Court Justices further maintained that, plea taking is essential in a criminal trial because it forms the basis upon which the accused person gets to know the details of the case against him or her to enable such accused person to prepare his or her defense.

Right to a Fair Hearing:

Parties involved in legal proceedings must have an opportunity to address the court, even when a judge wishes to consider an issue after the formal hearing has concluded. The learned justices determined that, "The failure of the Court of Appeal to accord the parties the right to address court on an issue not raised in the memorandum of appeal, which issue the same court relied on to declare the proceedings a nullity, was definitely a misdirection, and was erroneous, in law. It not only violated the parties’ right to a fair hearing, but also occasioned a miscarriage of justice, let alone leading that court to base its decisions on wrong findings of fact.

It is worth noting that in this case, the state (prosecution) raised concerns about the learned justices of the Appeal Court not affording the respondents an opportunity to be heard before rendering their decision, ultimately resulting in acquittal. Background of the case. On April 27, 2015, the Respondents faced trial at the High Court in Mbale, Uganda, where they were convicted of murder under sections 188 and 189 of the Penal Code Act. Dissatisfied with the verdict, the respondents appealed both their conviction and sentence.

The Court of Appeal, sitting at Masaka before Justices Egonda Ntende, Clieborion, and Kihecdi, JJA, in Criminal Appeal No. 16 of 2016, delivered on August 6, 2020, discovered a critical procedural flaw: the respondents had not entered a plea during the initial trial. Consequently, the Court of Appeal quashed the proceedings and set aside the sentences. Rather than ordering a retrial, it opted for a stay of prosecution, leading to the immediate release of the respondents

The matter subsequently reached the Supreme Court, where the central issue revolved around whether the Court of Appeal, when handling an appeal, could unilaterally decide on a matter without granting the parties an opportunity to be heard. Rationale on the Right to a Fair Hearing and Procedural Justice. Article 28 of the Constitution of the Republic of Uganda, 1995 enshrines the right to a fair hearing, applying equally to all parties involved in legal proceedings. Courts are duty-bound to uphold this fundamental right. In the case before the Court of Appeal, a perceived procedural irregularity emerged: the respondents had not entered a plea during the initial trial. While the Court of Appeal identified what appeared to be an illegality on the face of the record, the principles of natural justice dictate a different approach. Rather than summarily declaring the proceedings null and void, the court should have afforded both the appellant and respondents an opportunity to be heard. This balanced approach ensures that justice prevails while respecting the rights of all parties involved. The Supreme Court observed that Rule 102 (c) of the the Judicature (Court of Appeal Rules) Directions provides that the court shall not allow an appeal or cross-appeal on any ground not set forth or implicit in the memorandum of appeal or notice of cross-appeal, without affording the respondent or the appellant, as the case may be, an opportunity of being heard on that ground.

The court further added that, "In M/S Fangmin Vs Belex Tours & Travels Ltd, Civil Appeal No. 06 of 2013, consolidated with Crane Bank Ltd Vs Belex Tours & Travel Ltd, Civil Appeal No. 1 of 2014, at page 32, this Court observed as follows: ‘The correct position of the law is that an issue or ground of illegality or fraud that was not raised in the lower court may be raised on appeal, the parties must be given an opportunity to address the court on it before the court makes a decision. Even where a judge wishes to consider an issue after the hearing has been concluded, the judge must allow the parties an opportunity to address the court on the issue.’" The Supreme Court's findings The failure of the Court of Appeal to accord the parties the right to address court on an issue not raised in the memorandum of appeal, which issue the same court relied on to declare the proceedings a nullity, was definitely a misdirection, and was erroneous, in law. It not only violated the parties’ right to a fair hearing, but also occasioned a miscarriage of justice, let alone leading that court to base its decisions on wrong findings of fact. The record before us indeed shows that a satisfactory explanation or justification could have been offered by the Appellant if the Court of Appeal had accorded them an opportunity to address it on the issue of whether the Respondents took plea at trial. Rationale on the Significance of Plea Taking and Procedure of Taking Plea Section 60 of the Trial on Indictments Act Cap 23, provides for pleading to indictment. "The accused person to be tried before the High Court shall be placed at the bar unfettered, unless the court shall cause otherwise to order, and the indictment shall be read over to him or her by the chief registrar or other officer of the court, and explained if need be by that officer or interpreted by the interpreter of the court; and the accused person shall be required to plead instantly to the indictment, unless, where the accused person is entitled to service of a copy of the indictment, he or she shall object to the want of such service, and the court shall find that he or she has not been duly served with a copy." This position is buttressed in the case of Adan V Republic (1973) EA, 443 where the procedure of taking a plea was summarized as follows; “When a person is charged, the charge and the particulars should be read out to them in their own language if possible. If that is not feasible, it should be done in a language they can understand. The magistrate must then explain to the accused all the essential elements of the offense they are charged with. If the accused admits to all those essential elements, the magistrate should record what the accused has said, as closely as possible in the accused’s own words, and then orally enter a plea of guilt. Next, the magistrate should ask the prosecutor to state the facts of the alleged offense. If the statement is complete, the accused should be given an opportunity to dispute or explain the facts or add any relevant information. However, if the accused disagrees with the facts presented or asserts additional facts that might raise questions about their guilt, the magistrate should record a change of plea to not guilty and proceed to hold a trial. If the accused does not contest the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentencing. The statement of facts and the accused’s reply must, of course, be accurately recorded.” The court thus observed that, the provisions of section 60 of the Trial on Indictment Act, Cap 23, read with the decision in Adan V Republic are clear on how taking of plea should be done. The process involves reading and explaining the indictment to the accused person, and recording the response given by such accused person. If the accused person pleads not guilty, as provided for in sections 66, 67, 71, 72 and 73 of the Trial on Indictments Act, assessors are chosen, followed by a preliminary hearing, swearing of assessors, and calling of witnesses. This would mean that where taking a plea was clearly conducted, what is read and explained to the accused person is not only the indictment or charge and its particulars, but also the ingredients of the offense the accused person is charged with. In the same circumstances, this also presupposes that the hearing of oral testimonies cannot commence unless the accused person pleaded not guilty to the charges against him/her, the Supreme Court added. While taking note of Article 126(2)(e) of the Constitution, which enjoins courts to administer substantive justice without undue regard to technicalities, considering Section 34(1) of the Criminal Procedure Code Act (Cap 116). That permits an appellate court, on appeal against conviction, to ignore procedural errors and omissions if no substantive miscarriage of justice has occurred. Additionally, Section 139 of the Trial on Indictments Act provides that no finding, sentence, or order passed by the High Court shall be reversed or altered on appeal due to any error, omission, or irregularity unless it has genuinely resulted in a failure of justice. Section 139(1) of the same Act further emphasizes that when determining whether an error, omission, irregularity, or misdirection has led to a failure of justice, the court should consider whether the objection could and should have been raised earlier in the proceedings. Court adopted the principles in the case of Guster Nsubuga and Another v. Uganda (SCCA No. 92 of 2018). where it was held that substantive justice requires overlooking anomalies in the plea-taking process in favor of the broader cause of justice. Demanding flawless trials akin to clockwork, where minor deviations nullify the entire proceedings, would be unrealistic. Significance of Plea Taking in Criminal Trials.

The case at hand emphasizes that plea taking remains essential in criminal trials. It serves as the foundation for the accused person to understand the case against them and prepare a defense. The justices observed that, substantive justice was clearly administered. The record showed that the Respondents pleaded not guilty to a charge of murder, raised the defense of alibi, cross-examined prosecution witnesses through their Counsel, and provided evidence as defense witnesses—all without objecting to the trial’s conduct. Their submissions acknowledged taking a plea of not guilty.

While the record lacks a specific recording of the Respondents’ plea-taking during the trial, it is evident that they engaged fully in the proceedings. Therefore, based on the highlighted principles and our examination of the record, we find that the learned Justices of Appeal erred in law by declaring the conviction and sentence of the Respondents null and void, resulting in a miscarriage of justice. Applicability Human rights are inherent and not given by the state. The right to a fair hearing is a non-derogable right as provided for under article 44 (c ) of the constitution. Therefore every individual ought to be given a fair trial before an independent and impartial court or tribunal established by law. These legal principles apply to cases where procedural errors or omissions occur during criminal proceedings. They emphasize substantive justice over technicalities. The Court should consider whether an objection could and should have been raised earlier in the proceedings. Plea taking remains essential for the accused person’s understanding and defense. The absence of a specific plea recording does not negate the fact that the Respondents actively participated in the trial. The learned Justices of Appeal erred in declaring the conviction and sentence null and void based on procedural technicalities. Conclusion. In conclusion, the decision of Uganda v Hajji Elisa Namunyu & 5 Ors, the Supreme Court highlights two crucial aspects of criminal proceedings: the importance of plea taking and the right to a fair hearing. Firstly, it stresses that plea taking is essential for accused individuals to understand the charges against them and prepare their defense, prioritizing substantive justice over minor procedural flaws. Secondly, the ruling reaffirms the fundamental right to a fair hearing, emphasizing that courts must uphold this right even in the face of procedural errors to prevent miscarriages of justice. The decision underscores that human rights, including the right to a fair trial, are inherent and must not be compromised by procedural technicalities. It serves as a reminder that courts should prioritize substantive justice and ensure accused individuals have a fair opportunity to defend themselves, maintaining the integrity of the judicial process. Prepared By WAGUMA MUKISA JAMES UGANDA CHRISTIAN UNIVERSITY LLB1