[1991] UGHC 85

Hon: Justice F. M. S. Eganda. Nitende

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### CRIMINAL REVISION ORDER NO.97/91

YUBENTINO OLINGA :::::::::::::::::::::::::::::::::::: ACCHSED

#### V E R S U 🕿

**UGANDA** <pre>111111111111111111111111111111111111 RESPONDENT

BEFORE: The Hon. Mr. Justice G. M. Okello:

### REVISION ORDER:

The Accused was charged in two counts with offences under the Witchcraft Act. In count 1, he was charged with being in possession of articles used in practising Witchcraft contrary to section 5(1) of the Witchcraft Act. In count 2, he was charged with practising Witchcraft contrary to section 3(1) of the Witchcraft. He denied both charges but after trial, he was convicted on both counts. Subsequently he was sentenced to 24 months imprisonment in count 1 and to 36 months imprisonment in count 2. The sentence ces were ordered to run consecutively.

The relevant file was sent to this court for confirmation of sentence under section 167 of the MCA'70. A sentence of two years and over by a Magistrate attracts confirmation by High Court under this section. The relevant file was placed before me for the purpose.

On perusal of the record of the proceeding, I formed the view that the convictions of the accused in both counts were bad in law as they were not supported by the evidence on record. I therefore declined to confirm the sentences.

When the record of the proceedings in the relevant file was sent to the DPP for his view, Edward Wandera a state Attorney who worte the views of the DPP in his letter ref $6/4/2$ of $18/7/91$ shared the view that the convictions were bad in law because they were not supported by the evidence on record. That the requirements of the mandatory provision of section 5(2) of Witchcraft Act were not complied with. He therefore did not support the convictions and did not wish to be heard in the event of a revisional order being made.

Under section 5(2) of the Witchcraft Act, for an offence under section 5(1) of the Witchcraft Act to be established, the articles found in the possession of an accused must be proved to be . article which are by common repute or belief used in practising witchcraft.

In the instant case, there, was no evidence to show that the articles which were allegedly found in the possession of the accused were by common repute articles which are used in practising witchcraft. In the absence of such a proof, a conviction for the offence under section 5(1) of the Witchcraft Act is bad in law for non-compliance with the mandatory provision of section 5(2) of the Witchcraft Act. Such a conviction cannot be allowed to stand.

In count 2, the accused was charged with practising Witchcraft contrary to section 3(1) of the Witchcraft Act. In support of this charge was led to show that the accused slaughtered a chicken purportedly to cure the complainant of an ailment which was allegedly induced onto the complainant by the accused's witchcraft. The accused of course denied the allegations and complained to have been assaulted. That complaint aparte, there is no evidence that by common repute the slaughter of a chicken is commonly administered, used or performed in the practice of witchcraft. In the absence of the above eveidence it is unsafe to convict for an offence under section 3(1) of the Witchcraft Act.

For the reasons given above, the convictions of the accused on both ♦ounts are quashed as being bad in law.

The sentences were ordered to run consecutively.

It is an established principle that where an accused person is convicted of two or more offences which arose out of the same transactions the sentences should be ordered to run concurrently..

From the facts of the instant case, the sentences ought to have been ordered to run concurrently. However, since both convictions were quashed for reasons given, the sentences resulting from those convictions are also set aside.

/3

ORBER:

The accused is to be set free at once unless he is being held on some other lawful grounds.

G. M. Okello

JUDGE.

$6/8/91$

3