[2025] UGHCCRD 5

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

# **HCT-00-CR-SC-0814-2022**

**UGANDA ……………………… PROSECUTOR**

### **VERSUS**

**KIMULI LIVINGSTONE …................................. ACCUSED**

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

#### **RULING**

The accused person, **Kimuli Livingstone,** was indicted for the offence of Aggravated Defilement contrary to section 129 (3) and (4) (a) and (c) of **the Penal Code Act**. He pleaded not guilty.

In the course of proceedings, counsel representing the accused person submitted that he had misgivings about the accused person's mental capacity to follow proceedings. That all his interactions with the accused had led him to believe that his client was not fit to stand trial.

The accused person had been examined on PF 24. The examining doctor had testified as PW 1 and stated that his examination revealed that the accused was sane and could stand trial.

However, from appearance and in the observation of this court, the accused appeared uncoordinated and withdrawn.

It was at this stage that this Court opted to subject the accused to a thorough psychiatric assessment, to specifically determine whether he had the capacity to follow proceedings and mount a defence to the allegations made. The officer in charge Kigo Prison was directed to ensure the assessment was done and the report produced. On the 6th of February 2024 the accused was examined by a Dr Hillary Irimaso, a Psychiatrist at Murchison Bay Hospital. The report of the examination is on the court record.

The medical officer found that the accused was calm but could not maintain eye contact. His speech was normal but uncoordinated. His mood was low which was consistent with a flat effect. His thought process was poor, slow and incoherent. He had obvious active auditory and visual hallucinations. He appeared detached from reality and self. Cognition was poor in all aspects including general knowledge, attention and concentration, abstract reasoning, judgment and numeracy. He also had poor insight.

He was aware that he was charged with defilement but was not aware of the court process or the possible penalties. It was indicated that he had Schizophrenia and Intellectual Disability.

In conclusion the Psychiatrist stated that although the accused could be stabilised with medication, his intellectual disability will never be stable as it is a neurodevelopmental disability. He would never be fit to stand trial. Additionally, he may not have the criminal responsibility for the crime he is charged with.

It is true that every accused person has a rebuttable presumption of sanity as stated in Section 10 of **the Penal Code Act** which stipulates that,

Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

[additionally see Section 105 (2 (c) of **the Evidence Act Cap 8**]

The court however bears a duty to ensure that every person accused is fit to stand trial and capable of mounting a defence. That the accused will be able to comprehend the proceedings. Any doubt as to the mental capacity would mean that the accused person's fitness to stand is impaired. In those circumstances Section 45 (1) of the **Trial on Indictments Act** would apply. It provides that,

When in the course of a trial the High Court has reason to believe that the accused is of unsound mind and consequently incapable of making his or her defence, it shall inquire into the fact of such unsoundness.

This provision is couched in mandatory terms where the question of capacity is raised. It was as a consequence of the above provision that this court directed the above inquiry be made.

The Constitutional Court in *Cehurd & Anor V Attorney General Constitutional Petition No.64 of 2011* considered the constitutionality of Section 45 (5) of the TIA. It was observed that every accused person was entitled to due process of the law in the conduct of proceedings against them. That in Black's law dictionary 'due process' is stated to include the opportunity to be heard, to be aware that a matter is pending, to make an informed choice whether to acquiesce or contest, and to assert before the appropriate decision making body the reasons for that choice.

The accused should be able to follow and participate in the proceedings. To enjoy his right to a fair trial, the accused must have the mental awareness to comprehend the proceedings and the consequences of the prosecution against him. This way he would make an informed decision how to respond to the charges and give instructions to counsel handling his defence.

Resultantly, it would require a minimum level of intellectual acuity to do this. From the doctors report the accused lacks this capacity and will never acquire it at any point in future.

In the United States Supreme Court case of **Dusky v. United States, 362 U. S. 402 (1960)** a medical assessment concluded that Mr. Dusky was mentally ill with a diagnoses of schizophrenia and that, because of this illness, he was unable to properly understand the proceedings against him and to adequately assist counsel in his defence. The Supreme Court of the USA held in terms of capacity that the "test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. "

In **Uganda vs Nakalema and Anor HCCS 23 of 2018**, where the question of the capacity of the accused was considered, the court held that it would be unjust to continue trying an accused where there is no hope of the accused ever understanding the proceedings of court. Section 17 (2) of **the Judicature Act** was employed to invoke the courts inherent powers to dismiss the proceedings

I agree with the procedure adopted in the cited matter. It also applies with full force in the instant case. The proceedings against Kimuli Livingstone are accordingly terminated pursuant to Section 17 (2) of **The Judicature Act** and he is discharged.

**……………………………**

**Michael Elubu**

**Judge**

**15.02.2024**