The general rule of criminal law, ‘’Actus non facit reum nisi men sit rea’’,

means that an act does not make a defendant guilty without a guilty mind.
This therefore means that for a person to be guilty of any criminal offence, he
/she must have a blame worthy state of mind.

The principle of legality, ‘’Nulla poena sine lege’’ which expresses the idea
that a person should not suffer except for a distinctive breach of criminal law
that is laid before him. Therefore, no person can be punished without the law
under criminal law.

The Supreme law of Uganda, the Constitution of 1995 also provides for the
protection of fundamental human rights in criminal proceedings under
Articles 20-28. However, the Ugandan criminal law system provides for the
offences against a person and these are provided for under the Penal Code Act
Cap 120 (PCA). Among these offences is the offence called Homicide/
Homicidium where a person kills another person. This is expressed under
the legal maxim ‘’Aliquis qui fraudulenter’’ (killing of another human being).

Section 188 of the PCA provides for the offence of murder as to where any
person who out of malice aforethought causes death of another person by
unlawful act or omission. Therefore the corpus delict of the offence of murder
consists of the element of ‘’malice aforethought’’ and the unlawful acts or
omissions committed by the accused. Section 191, Malice aforethought
means the intention to cause the death of any person or the knowledge that
the act or omission done will cause death. This therefore means that for a
person to be liable for murder, there must have been a ‘’Doli capax’’ (capable
of committing a crime) and of ‘’Compus mentis’’ (sound mind) with the
‘’Amicus ossicio’’ (intention to kill) and this makes the accused subject to
sections 188, 191 and 189 of the PCA.

However, the accused may plead not guilty of murder basing on the
circumstances of the case on grounds that he/she did not have the intention
to kill and therefore charged of manslaughter instead. Under section 187(1)
of the PCA, the felony of manslaughter arises where any person who by an
unlawful act or omission causes the death of another person. Section 190
provides for the punishment for this offence in case one is found guilty to be
imprisoned for life.

Manslaughter is basically distinguished from murder by reason of absence of

malice aforethought and therefore the punishment differs. According to
Smith and Hogan1, ‘manslaughter is a diverse crime, covering all unlawful
homicides which are not under murder.’ Under the Ugandan criminal law
system, ‘all homicides are presumed to be unlawful.’

In the case of Uganda v Wilbert Sekandi, the court held that,’’ even where
there are no defences available to the accused charged with murder like in the
present case, it would still be open to the court to conclude that although the
accused acted unjustly he had no intention to kill or cause serious harm, then
manslaughter is the verdict.2

Under section 87 of the Trial on Indictments Act, the law provides that
when a person is charged with an offence and facts are proved which reduce
it to a minor cognate offence, that person is to be charged with the minor
offence. Important to note is that manslaughter is divided into two main
groups which are designated voluntary and involuntary manslaughter.
Voluntary manslaughter basically advocates for the notion that a defendant
would be guilty of murder but for the existence of a special defence, the charge
of murder is reduced to manslaughter. According to Smith and Hogan,
voluntary manslaughter is where the defendant kills with the fault required
for murder but because of the presence of a particular extenuating
circumstance recognized by law, the offence is reduced to manslaughter.3
Similarly, Card, Cross and Jones argue that, ‘’the rationale behind voluntary
manslaughter is that it provides a way in the circumstances of a murder case
to avoid the mandatory sentence of murder.4 However, the accused person
can raise several special defences on a charge of murder in order to seek for
its reduction to manslaughter. These defences are categorized into partial and

1
Smith and Hogan; Criminal law, 7th Edition, p.631
2
(1972) HCB
3
Smith and Hogan, Criminal law, 7th Edition, p.638
4
Card, Cross and Jones, Criminal law, 7th Edition, p.263
complete defences. A complete defence is one which if successfully raised
leads to the acquittal of the accused. A partial defence has the effect of
reducing the offence of murder to manslaughter. Generally, partial defences
to voluntary manslaughter include: Provocation, Diminished responsibility
and suicide pacts.

However, the onus probandi lies on the prosecution to prove beyond

reasonable doubt that the accused is liable for causing murder. There are
exceptions to this general rule in relation to some defences where the burden
of proof shifts from the prosecution to the accused to that he/she is not guilty
of murder. Under section 103 of the Evidence Act, the burden of proof is
placed on that person who wishes the court to believe in its existence.

Section 105(2) of the Evidence Act provides that the burden of proof can shift
from the prosecution to the accused to prove the defence of intoxication and
insanity. This is equivalent to the legal maxim, ‘’Actori incumbit onus
probandi’’ which means that the burden of proof lies on the plaintiff and in
this case the accused may be the plaintiff if it is an appeal for a murder case.

So under the partial defences which may be raised by the accused in order to
reduce the charge of murder to manslaughter include the following:

DEFENCE OF PROVOCATION

Provocation in the legal sense must have involved an insult or act of a nature
capable of causing temporary loss of self-control and the reaction must have
been in the heat of passion without any lapse of a period sufficient enough to
allow the accused to regain his self-control.

Section 192 of the PCA defines provocation as to when a person unlawfully

kills another under circumstances which but for this section, would
constitute murder, does the act which causes death in the heat of passion
caused by sudden provocation as defined in section 193, and before there is
time for his/ her passion to cool, he/she commits manslaughter.
According to Card, Cross and Jones, ‘’a person who but for the defence of
loss of control would be liable to be convicted of murder is liable instead to be
convicted of manslaughter.5

Smith and Hogan argue that the issue of provocation is raised whenever the
evidence is admitted which might lead a jury to think it is possible that the
accused has relied on the defence of provocation or not.6 In the case of Sowed
Ndosire v Uganda, the elements of the defence of provocation to murder were
highlighted as follows;7

1) A wrongful act or insult sufficient to enrage an ordinary person.

2) The accused, because of the wrongful act or insult attained a mental
state called sudden heating of passion.
3) The killing of the victim was sudden without cooling
4) There was a connection between provocation, heat of passion and the
killing.

Therefore if this defence is successfully raised, the accused can be charged of

manslaughter instead of murder. Thus in Uganda v Mawa John8, the accused
had beaten his wife to death. He alleged that he went back home and did not
find her in the house. He raised the defence of provocation on grounds that
he was annoyed and there was heating of passion before cooling by the time
he beat her. The court held that he was liable for manslaughter subject to
section 187 and 190 of the PCA.

However, ‘’witchcraft’’ can also be taken to be a mode of provocation for the

case of murder. I the case of Uganda v Nambwegere s/o Rovumba9, the
accused in his defence in court admitted killing the deceased because the
deceased had bewitched his wife. Faud J held that, ‘’as the accused believed
that the deceased had supernatural powers and this belief was shared by most
people in the village, he honestly, mistakenly suspected that the deceased had

5
Card, Cross and Jones, Criminal law, 7th Edition, p.281
6
Smith and Hogan, Criminal law, 7th Edition, p.648
7
S.C Criminal Appeal No. 28 of 1989
8
Criminal Sessions case No. 0157 of 2014
9
(1972) 2 VLR 15
caused sudden heating of passion which made him to kill the deceased before
heating of passion’’

DIMINISHED RESPONSIBILITY

Under section 194(1) of the PCA, a person if found guilty of murder having
been party to murder of another, if the court is satisfied that he/she was
suffering from such an abnormality of mind, arising from a condition of
retarded development of mind, or any inherent cause or induced by disease,
as substantially impaired his/her mental responsibility for his/her acts or
omissions.

Section 194(2) establishes diminished responsibility as a defence to murder

provided the accused was suffering from such abnormality of mind as
mentioned in section 194(1).

According to Card, Cross and Jones, ‘’diminished responsibility is merely a

mitigating factor limited to charges of murder. It applies only where the
defendant would otherwise be guilty of murder because the actus Reus and
mens rea of the offence have been proved or admitted.’’10 This therefore means
that though the accused was a ‘’Doli capax’’ at the time of committing
murder, he/she was of ‘’Non compus mentis’’ by virtue of diminished
responsibility. This defence was considered in the case of R v Byrne11, where
the accused had admitted strangling a girl and later mutilating her dead body.
Medical evidence showed that he was under perverted sexual desire which he
could not control mentally. The court reduced his charge of murder to
manslaughter on grounds of diminished responsibility. The supreme court of
Uganda attempted to consider this defence in the case of Rukarekoha v
Uganda12 where Mulenga JSC, gave some guidance to the application of the
defence and also disapproved some commentary mad on the defence by
Collingwood in his book, ‘’Criminal law of East Africa’’ and effectively

10
Card, Cross and Jones, Criminal law, 7th Edition, p.269
11
1960 ALLER
12
[1999] EA. 303
overruled Uganda v Kankuratire13 on grounds that the principles of the
defence of diminished responsibility weren’t effectively initiated.

SUICIDE PACTS

Section 195(3) defines a suicide pact as a common agreement between two

or more persons having for its object the death of all of them, whether or not
each is to take his/her own life, and nothing done by a person who enters into
a suicide pact shall be treated as done by him/her in pursuance of the pact.

Card, Cross and Jones argue that it is not murder intentionally to kill a
person in pursuance of a suicide pact. Section 195(1) of the PCA provides
that it shall be manslaughter and shall not be murder for a person acting in
pursuance of a suicide pact between him/her and another to kill the other or
be a party to the killing himself/herself or being killed by a third party.
Therefore, on a charge of murder, the persuasive burden of proving that the
accused was acting to a suicide pact is between him and the other is borne
by the defendant. In relation to this, section 195(3) emphasizes that it shall
be for the defence to prove that the person charged was acting in pursuance
of a suicide pact between him/her and the other.

Smith and Hogan argue that the defence is only partial, as with diminished
responsibility and provocation, and the successful plea will result in a
conviction for manslaughter14. However, there are other defences which are
not partial defences but also can be raised by the accused in order to reduce
the offence of murder to manslaughter which include:

INTOXICATION

This is only a defence if it renders the accused incapable of forming the

necessary measure for murder. Section 12 of the PCA provides that
intoxication shall only be a defence to any criminal charge if by reason of the
intoxication the person charged at the time of the act or omission complained
of not knowing what he/she was doing and the state of intoxication was

13
[1975] HCB. 134S
14
Smith and Hogan, Criminal law, 7th Edition, p.304
caused without his/her consent by the malicious or negligent act of another
person. Therefore if it is proved that the accused did not have the intention to
cause murder by virtue of intoxication, the charge can be reduced to
manslaughter.

The legal maxim ‘’Qui Pecat embrus, Luat Sobrius’’ means that he who sins
when drunk shall be punished when sober. The Supreme court in the case
of Kiyengo v Uganda15 held that, ‘’in considering the defence of intoxication,
the question was not whether person was or was not capable of forming the
intention but rather whether by reason of the drink taken, he did not form
the intention to cause murder.

In Kinutha s/o Kamau v R16, the accused without any apparent motive
smashed a window, chased the deceased and killed him. The accused was
later found sleeping on top of a panga and smelling alcohol. The court reduced
his conviction of murder to manslaughter.

INFANTICIDE

Under section 213 of the PCA, a woman by any unlawful act or omission
causes the death of her child being a child under the age of 12 months but at
the time of the act or omission the balance of her mind was disturbed by
reason of the effect of giving birth to the child or by effect of lactation
consequent upon the birth of the child, notwithstanding that the
circumstances were such that but for the provisions of section 213, the
offence would have amounted to murder, she commits the felony of infanticide
and may for such an offence be dealt with and punished as if she had been
guilty of the offence of manslaughter of the child.

Therefore, the accused can be charged of manslaughter in case it is proved

that there no intention of killing the baby. In summation, the above essay
elaborates how the charge of murder can be reduced to manslaughter by
virtue of special defences raised by the accused.

15
[2005] 2 EA 106
16
17 EACA 137S