[2021] UGHCCRD 78

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL No 27 OF 2021 (Arising from Entebbe Court Case No 591 of 2017)**

# **ARGUETA VALASQUEZ**

**LUIS :::::::::::::::::::::::: APPELLANT**

*vs*

**UGANDA ::::::::::::::::::::::: RESPONDENT**

#### **BEFORE: HON. MR. JUSTICE MICHAEL ELUBU**

#### **JUDGMENT**

The Appellant, **ARGUETA VALASQUEZ LUIS**, filed this appeal against the orders and sentence of **HW MARY KAITESI KISAKYE LUKWAGO,** Chief Magistrate Entebbe Court, who convicted him on 2 Counts namely: 1. Unlawful Possession of Narcotic Drugs c/ss 4 (1) & (2) (a) and 2. Trafficking in Narcotic drugs c/s 5 all of **The Narcotic Drugs and Psychotropic Substance (Control) Act 2016**. The appellant pleaded guilty and was convicted and sentenced on the first count to a fine of 10 million shillings or, in default, to serve 10 years in prison. On the second count he was also sentenced to a fine of 10 million shillings or to serve 10 years in prison. All sentences were to run concurrently.

The back ground to this matter is that the appellant is Guatemalan National holding a Guatemalan passport. On the 26th of July 2017, he landed at the Entebbe International Airport aboard Ethiopian Airlines from Brazil. When he was searched by Airport security it was found that he had in his possession a white powder which was later established to be 1.4 kg of cocaine, a narcotic drug listed under the 2nd schedule of **The Narcotic Drugs and Psychotropic Substance (Control) Act, 2016.** He was immediately arrested and charged. On the 4th of August 2017, he was arraigned before the Chief Magistrates Court of Entebbe, where it was established that the appellant did not understand English and could only communicate in Spanish. The matter was accordingly adjourned to the 8th of September 2017 when a Spanish interpreter was made available. The appellant pleaded guilty to all charges and was convicted and sentenced as earlier stated.

Being dissatisfied with the order of the trial court, the appellant has filed this appeal with 2 grounds namely,

- 1. That the learned trial magistrate erred in law and fact shifting the liability and obligation of burden of proof from the prosecution to the appellant which diminished her final determination of the case. - 2. That the leaned trial magistrate erred in law and fact when she sentenced the appellant to 10 (ten) years imprisonment on each count which was a harsh and excessive sentence in the circumstances.

The appellant prays that this appeal be allowed, conviction quashed and sentence set aside; or in the alternative the sentence be reduced.

Both parties filed written submissions.

This is a first appellate court whose duty was laid out in the Supreme Court decision in the case of **Kifamunte Henry vs Ug SCCA 10 of 1997** which states,

*The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make* *up its own mind not disregarding the judgment appealed from but carefully weighing and considering it.*

### **Ground 1**

### **1. That the learned trial magistrate erred in law and fact shifting the liability and obligation of burden of proof from the prosecution to the appellant which diminished her final determination of the case.**

In his submissions on this issue, the appellant stated that the trial magistrate erred in failing to provide him with an advocate, which he was entitled to under Art 28 (3) (c) of the **Constitution.** That this was a miscarriage of justice.

The Respondent, in reply, argued that while it was true that the appellant had a right to legal representation, he did not inform the Court that he needed or required an advocate.

In determination of this ground, the facts show that when the appellant was produced on the 4th of August 2017, he could not comprehend the proceedings because he understood only the Spanish language. The matter was adjourned to the 8th of September 2017 when the charges were read to him through a Spanish language interpreter.

The second count on the charge sheet was under Section 5 of the of **The Narcotic Drugs and Psychotropic Substance (Control) Act 2016** which read as follows,

Any person who traffics in a narcotic drug or psychotropic substance commits an offence and is liable in respect of the narcotic drug or psychotropic substance to a fine of not less than five hundred currency points or three times the market value of the narcotic drug or psychotropic substance, whichever is greater, and in addition, to imprisonment for life.

This offence carries a maximum sentence of life. The Constitution of the Republic of Uganda stipulates in Art 28 (3) (e) that,

Every person who is charged with a criminal offence shall in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State.

This is a provision that is aimed at safeguarding the fair trial rights of the accused. Secondly, it is couched in mandatory terms. More importantly, under Article 44 of the Constitution, there can be no derogation from any of the rights to fair trial such the right to legal representation under Art 28 (3) (e).

In sum, the state is obligated to ensure legal representation for an accused who is charged with an offence which attracts a maximum sentence of life imprisonment. Counsel should be available for every stage of trial including plea taking. Thatserves to ensure equality of the parties or arms appearing before the Court

In these circumstances it is immaterial whether, or not, the accused requested for the services of counsel. The court was under a duty to inform him of the right and follow that up by assigning him counsel if he could not afford one.

Because of the peremptory nature of the provision, it was fatal to the proceedings to proceed without counsel. In any event, considering the gravity of the charge, the lack of comprehension of the English language and recent arrival in the country, it rendered it imperative to have counsel assigned to the appellant.

The second aspect of this trial was the plea taking. It was never established what the credentials or level of proficiency of the interpreter in Spanish were. The court was under duty to explain the charges to the appellant and to ensure that he properly understood them. This was not done. These requirements were summed up in the case of **Adan v Republic [1973] 1 EA 445** as follows,

The courts have always been concerned that an accused person should not be convicted on his plea unless it was certain that he really understood the charge and had no defence to it. The danger of a conviction on an equivocal plea is obviously greatest where the accused is unrepresented, is of limited education and does not speak the language of the court.

…When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged.

Clearly these requirements were not followed in this case and that resulted in a miscarriage of justice. The entire trial was rendered defective as a result of the failures seen here.

The first ground of appeal is therefore upheld.

In view of my findings on Ground 1 it would be superfluous to proceed to ground 2.

As stated in **Fatehali Manji v The Republic [1966] 1 EA 343,** in general a retrial will be ordered only when the original trial was illegal or defective.

The circumstances of this case are such that the failure to meet constitutional demands rendered the trial illegal and defective.

In the result it is hereby ordered that a retrial be held. The appellant shall be held in custody pending his production before the Chief Magistrate for a fresh trial.

**…………………………………**

**Michael Elubu**

**Judge**

**2.12.2021**