[1991] UGHC 68

The Hor. Mr. Justice F. M. S. Egonda- Ntede THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA REVISION ORDER NO. 45/91 ORIGINAL CRIMINAL CASE NO. 103-108/89

**FROSECUTOR ::::::::::::::::::::::::::::::: UGANDA** VERSUS

ENCSI OGWANG :::::::::::::::::::::::::::::::::: ACCUSED BEFORE: The Hon. Mr. Justice G. M. Okello:

REVISION ORDER:

The above six Crimmnal Case Files from Aduku Magistrate's Court were sent to this court for confirmation of sentence under section 167 of the MCA'70. In each of these files, the accused was charged with and was convicted on his own pl a of guilty of Imputation of witch-craft contrary so section 4 of the Witchcraft Act. Following those convictions the accused was sentenced in each fitthese files to a term of three years imprisonment with exclusion order for ten years also in each of those files. The Irial Magistrate was a Wagistrate Grade II.

<span id="page-0-0"></span>A sentence of three years imprisonment attracts confirmation under section 162 of the MCA'70. These files "... were placed before me for action. On $p$ perusal, I an of the view what the convictions in all these files were bad because the pleas in each case was not only equivocal but was also non sensical and the natrated facts were equally $n \cdot n$ non-sensical and so do not crrespond to the offence charged and to the particulars thereof. On the premises I declined to confirm the sentences and decided to make a revisional order. I accordingly directed that the files should be sent to the DPP for his views/

The above charge sheet is sigilar in all the six Criminal Case riles save for the name of the person to whom the alleged Imputation of user of witchcraft refers.

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It is trite law that unless there is an amendment, the prosecution is bound by the Particulars of the offence in the charge.

For a plea of guilty to be properly entered in the above charge, the accused must have in his plea admitted all the above four essential ingredients of the offence. In the instance case, the Pattern of the pleas recorded in all the six six case files are as under

"Plea:- It is true sir, all these herbs were found with me and were the ones which I killed ............. with.

or:-It is true I did kill the said ........ I really used native herbs. I cannot deny this charge sir"

From the above plea, the trial Magistrate entered a plea of guil_ty to the charge of Imputation of Witchcraft contrary to to section 4 of the Witchcraft Act. This was followed by the narration of the following facts:-

"The accused is our first born and was once in the Gove, - '1 F services as a Deputy Jago. It was on 16/9/89 when we essembled at Wilson Ottee's home togehter with RCs elders and chiefs where a Witch doctor was called to perform witchdoctor's deeds, that some herbs were disclosed by her to be at the accused's home and at his son's. Where when accused was asked, he voluntarily confessed saying that those herbs were his.<br>Indeed on reaching both his home and his son's home, s<br>some (14) fourteen different herbs were recovered and they cried with the accused's name that he was the one who brought them from one Bantu man called Otageza and to kill his (Accused) enemies. Accused having agreed, was referred to RCII and later to the Jago along with a<br>all these 14 herbs. These are the herbs sir. Sir,<br>Accused's reputation is badly tal ed of in our area and<br>the villagers there wanted to kill both myself, himself and all his children that his herbs have killed numerous people. Even now to "resoue his 3 16 children, the court should do something serious so as to levy the situation.

This is whole Sir".

The above facts were put to the accused who was recorded to have said thus

"As I said before, I have no objection to raise; Those herbs were only 2 but it seems they have now multiplied."

$^\mathrm{th}$ he accused was then convicted on his own plea of guilty of the offence of Imputation of Witchcraft contrary to section 4 of the Witchcraft Act. Before sentence, he was recorded to have said in allocutus thus:-

> "I have nothing to say except let the court decided what to do with me. I am sorry - these herbs even killed my own wife and children.<br>I have now no control over them and no remedy at all."

From the plea as recorded above, it is quite plain that the accused was not admitting that he had made accusation to any body not in authority or at all against anyone for use of witchcraft nor that those who were alleged to have deed died as a result of the accusation which he (accused) might have : J made about them for use of witchcraft. The plea was clearly not only equivocal but also non sensical as regards the offence charged.

Emen the narrated facts which the accused purportedly admitted, do not disclose that the accused at any one time made any accusation or imputation of use of witchcraft to anyone nor that anyone ever suffered any harm as a result of such imputation. Those facts disclosed no commission of the offence under section 4 of the Witchcraft Act. In the absecnce of an amendment to the charge, both theplea and the facts narrated remain non sensical. The purported plea of guilty or the admission by the accused of those jacts cannot change the situation. A proper plea of guilty must admit un-equivocally all the essential ingredients of the offence alleged. This is not so here.

I do not therefore agree with the learned State Attorney that the above plea was un-equivocal plea of guilty to th . offence of Imputation of Witchcraft contrary to section 4 of the the Witchcraft Act for the reasons given above. I also do not agree with the learned state attorney that the narrated facts disclose the comm ission of the offence of Imputation of Witch craft contrary to section 4 of the Witchcraft Act,

A

Both the pleas and the narrated facts do not contain the essential in redients of the offence charged. In the absence of amendment to the charge, no conviction can properly be made on the above plea for Imputation of witchcraft.

In the premises the convictions in all those files are , t ' •\* accordingly quashed and all the sentences along with the orders of exclusion are set aside. The accused is ordered to be released fo thwith unless he is being held for some other lawful reason.

G. M. Okello

JUDGE. 26/2/91

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