1|MAGALA FRED 220-053011-22861

The Merriam webster dictionary1 defines evidence to mean any facts adduced to a competent
court or tribunal to ascertain the truth of a matter / its untruthfulness. Evidence is given in
different forms such as producing witnesses to support one’s assertion or to disprove the position
of the adverse party. Witnesses always admit oral evidence and the evidence act under section
117 of act pronounces its self on the general rule as to who can be called as a witness;
“All persons shall be competent to testify unless the court considers that they are prevented
from understanding the questions put to them, or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body or mind, or any other
cause of the same kind.”
Court can only rely on the testimony of a witness when he or she is said to competent and this is
only if they can take in and understand questions advanced to them and respond with rational
answers, in our instant case each witness shall be accessed individually to ascertain whether he
or she is competent to testify and the prosecution can rely on their evidential submissions;
Katwere is dumb (mute) and deaf as well, this means that he is unable to hear or even speak.
Under section 118 of the evidence act 2, its clearly laid that where a person is unable to talk or
even speak, he can make his testimony through writing or by intelligent signs which can be
interpreted to understand what he means in response to the questions advanced to him and this
should be done in open court. In Uganda v Candia3 ,the judge held that it a dumb witness is a
competent witness and he or she can use any intelligent gestures or signs to make his testimony
or even write down whatever he observed. Where one is deaf and dumb, may not be able to hear
and speak but his or her other senses, such the sense of sight, remains functional and allows him
or her to make observations about his or her environment and experiences. Therefore, Katwere
is a competent witness that the prosecution can rely on as held in Hamisi s/o Balum v R where
testimony of a dumb witness was relied on.
Ntwala is said to be a Ganja smoker who is usually unable to understand what happens around
him, this is basing on the fact that Ganja is a drug that usually intoxicates one’s mind however
section 117 of the evidence act 4 provides that everyone is a competent witness as long as they
can understand the questions put to them and give rational answers. In our instant facts, Ntwala
clearly declared his intent to testify against the accused and claims to have seen what transpired,
therefore as long as he has the ability and capacity to answer the questions put to him and
remember what he recorded in the statement at police is a competent witness. This is so because
under the explanation under section 117 as long as one is not prevented by his lunacy from
testifying, he is a competent witness. Therefore, the prosecution can as well rely on Ntwala.
“Kyejo” being of tender age, she is as well not estopped from giving testimony as long as she
can understand the importance and value of taking oath, and as well answer questions advanced
to her in a rational sense as held in Turyamwijuka V Uganda5 where court held that “ to rely on
1
https://www.merriam-webster.com/dictionary/witness
2
section 118 of the evidence act
3
Uganda v Candia (Criminal Case 19 of 2020) [2020],
4
section 117 of the evidence act
5
Turyamwijuka V Uganda Criminal Appeal No. 65 Of 2008
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evidence of a child of tender age it should conduct a voire dire to determine whether she
understands the importance of an oath as well determine her intelligence and ability to
understand and respond to questions. Further, Section 40 of the trial on indictment act it clearly
emphasizes the same position. Therefore “KYEJO” in our facts at hand is a competent witness
the prosecution can rely on as long as she understands the importance of an oath and questions
advanced to her to be able to give a rational answer as held in Uganda v Oloya s/o Omoke6
Kiwanuka having aided and abetted the rape of Birungi, makes him an accomplice in the
commission for he knew about it, concealed it and as well aided the principal offender by
watching over as he executed his ill intention. Kiwanuka amounts to an accomplice for he knew
of the crime before its happening and never de-associated himself from the same as held in
Uganda v Ambayo & Anor7 An accomplice is a competent witness that the prosecution can rely
on, however such evidence should be collaborated and should be handled with carefulness to
make sure the accomplice is not trying to make his own case better. The same position is
emphasized in section 132 of the evidence act 8 where an accomplice is said to be a competent
witness against the accused person. Therefore, in our instant case Kiwanuka is a competent
witness the prosecution can rely on to prove its case beyond reasonable doubt. As well being of
mature age, does not make Kiwanuka incompetent as long as he can understand the nature of
questions advanced to him and as well be able to give rational answers in responses as held
under section 117 of the evidence act and in the case of Dr. Stella Nyanzi v Uganda9
3 b)- Where Kiwanuka de-associates himself from his previous statements, the state attorney
has got a remedy of discrediting his evidence/ testimony by seeking court to declare him a
hostile witness and as well allow him to cross examine him over the same as laid down
under section 154 of the evidence act.
A hostile witness is one who deliberately disowns his or previous statements made to the
investigating officer as held in Panchanan vs R. 34 C.W.N. this can be due to bribery or even
threat from the advance party. In determining whether one is a hostile witness, its dependent on
the trial judge who shall always refer to the first statement and compare it with the testimony,
where the trial judge finds the two in conflict and divergent, its upon his discretion to declare the
witness hostile. The same position was held in the case of Okwonga Anthony v Uganda10 where
a witness is declared hostile even their evidence can be scrapped off the record on request of the
prosecution.
Further, in the case of ESIYA SEKU v UGANDA11 Criminal Session Case No. HC-CR-SC-
0098-2 0 1 2 it was held that one can be declared a hostile witness the moment they divert from
their previous statements and start going against the party that produced them before court.

6
Uganda v Oloya s/o Omoke [1977] HCB 4
7
Uganda v Ambayo & Anor () [2018] UGHCCRD 47 (27 February 2018)
8
section 132 of the evidence acts of uganda
9
Dr. Stella Nyanzi v Uganda () [2019] UGHCCRD 39.
10
Okwonga Anthony v Uganda, CA NO,45 of 1999
11
ESIYA SEKU v UGANDA Criminal Session Case No. HC-CR-SC-0098-2 0 1 2