13.

CONFESSIONS

The Uganda Evidence Act does not define confessions nor does the Interpretation Act. One can
however, borrow the definition of the Kenyan Evidence Act which indicates that confessions
comprise of words or conduct or a combination of words and conduct from which whether taken
alone or in connection with other words lead to an inference that may reasonably be drawn that
the party making the confession has committed an offence.

It is important to note that confessions have several ingredients. These have been spelt out by
court in different cases. In Uganda under s. 24, it is indicated that a confession is irrelevant if it
appears to court that having regard to the state of mind of the accused in all circumstances
surrounding it, the accused made it out of violence, force or threat, inducement or promise
calculated in the opinion of the court to cause an untrue confession. In the case of Swami v The
Emperor (1939) 1 ALL ER 396, the principle was confirmed that a confession must either
admit in terms the offence or all facts which constitute the offence. The same decision was
upheld by the court in Uganda v Yosamu Mutahanzo (1988-90) HCB 4 where it was held that
a confession connotes an unequivocal admission of having committed an act in law that amounts
to a crime and must either admit in terms the offence or at any rate substantially all the facts
which constitute the offence. The accused’s extra judicial statement was an exculpatory
statement in the sense that the 4 accused threw blame on the accused and his statement could not
amount to a proper confession. Instead of being convicted for murder the accused was convicted
for manslaughter.

An admission of a gravely incriminating or even conclusively incriminating fact is not in itself a

confession. In an accused person admits that he owned a fire arm at the murder of someone, this
does not mean that he has confessed to the murder of the deceased. Therefore a confession must
be an unequivocal admission of having committed an act which in law amounts to a crime and
must either admit in terms the offence or at any rate substantially all the facts which constitute an
offence. Thus in Gopa &others v R (1953)20 EACA 318, it was stated that the accused’s extra
judicial statement was exculpatory in the sense that it explained the act of stabbing and therefore
the blame on the deceased person. Also in the case of Uganda v Lakot (1986) HCB 27, it was
held that the confession was equivocal since the accused admitted to having assaulted the
complainant but went ahead to explain why he did so.

In the case of Gopa the Judge said that a confession is a direct acknowledgement of guilt on the
part of the accused which is sufficient to convict him. The judge held that although an
extrajudicial statement contains self exculpatory matter it can still be a confession if the self
exculpatory matter does not negative the offence alleged to be charged. It is important to note
that this is different from admissions. An admission may be equivocal as long as it contains
matters relating to the liability of the maker.

The Law of Evidence 1 1 Kobusinge K. Nyakoojo, Lecturer UCU-Mukono

Self Exculpatory Matters

The definition is in Swami v The Emperor. It is clearly indicated that it is a matter adopted or
intended to free the maker from blame for the act admitted in the confession. The same was
discussed in the case of Uganda v Kamalawo & Others (1983) HCB 25.

The other ingredient is that a confession must be admitted as a whole. If it contains some parts
that are inadmissible then it cannot be taken as a confession. In the case of Uganda v Yosefu
Nyabenda (1972) 11 ULR 19, the judge clearly stated that the court was to receive the
confession of the accused as a whole and not in several parts and since it contained lies and half
truth then the confession could not be admitted as a true one. A confession has to be taken as a
whole although it does not have to be believed as a whole. The case of Uganda v Sebuguzi &
others (1988-1990) HCB 18 clearly stated that as regards the value of a confession against the
maker it is trite law that a confession should be taken as a whole. It was also stated that a
confession need not be believed as a whole or disbelieved as a whole. It was open to the trial
judge to accept part or reject the whole of it.

Retraction of Confessions

An accused person can retract or repudiate a confession. A retracted confession occurs when an
accused makes a statement or a confession which he later seeks to take back on the ground that
he either made it out of mistake or did not do it voluntarily. Ss 24, 25 and 276 should be read
together on this. An accused person may retract a confession in two ways:-

1. By clear and positive express repudiation.

2. By implication.

In Polo v R 17 EACA 150 the policemen arrested a Congolese and they made a conversation in
Kiswahili. During the trial the accused said there was a misunderstanding between them during
the conversation. The Court took this as a retracted confession. In R v Kengo & Another (1930)
10 EACA 123, the accused made a statement before a magistrate and confessed the murder but
during the trial he made an unsworn statement in which he denied the previous statement, he said
he had only heard from someone else that the deceased had died. The general rule regarding
repudiated and retracted confessions is that the confessions are admissible in evidence provided
the court is satisfied that the confession was made voluntarily. In the case of Tuwamoi v
Uganda (1967) EA 84, the court said that there is no clear distinction between repudiated and
retracted confessions and for any of them to be accepted by court it should be done with great
caution and the court should first satisfy itself that all circumstances surrounding the confession
do not negative it. To amount to a retracted confession the accused person admits having made
the statement recorded but he now wishes to take it back on the ground that it was made
involuntarily whereas a repudiated confession is a statement which the accused person avers he
never made. All this is discussed in the Tuwamoi case.

The Law of Evidence 1 2 Kobusinge K. Nyakoojo, Lecturer UCU-Mukono

In Uganda V Kanunini Edward (1976) HCB 159, Judge Allen held that with regard to
retracted confessions, the court should direct itself on the dangers of acting on it in the absence
of corroboration and some material particular except where the court is fully satisfied in the
circumstances of the case that it must be true. In Zenon Zavuru (1993-1993) HCB 7, the Court
of Appeal stated that once the appellant had repudiated the confession the trial judge ought to
have directed himself and the assessors to the effect that court had to accept a confession with
caution and had to be satisfied that in all circumstances of the case the confession was true.

What happens when someone has retracted or when the accused denies the confession or
challenges its admissibility?

If the confession is denied by the accused person then the trial judge should conduct a trial
within a trial . This in accordance with case of Major John Kazoora v Uganda (1994) 1 KALR
143. The purpose of the trial within a trial is to decide upon the evidence of both sides as to
whether the confession should be admitted. Court cannot by simply looking at the statement
conclude that it was made voluntarily. A statement that is made voluntarily is one made
absolutely free from inducement influence of whatever nature. In the case of Commissioner of
Customs and Excise versus Harz & others (1967) 1 ALL ER 172, the court held that it is true
that many of the so-called inducements have been so vague that no reasonable man would have
been influenced by them, but one must note that not all accused persons are reasonable men and
women. Therefore, a statement made involuntarily is inadmissible. The same was held in the
case of Uganda v Kalema & others (1974) HCB 142. In Binuge & others v Uganda (1992-93)
HCB 29, the court held that the 1st appellant was prejudiced when his objection to the
admissibility of his extra judicial statement was summarily dismissed by the trial judge. It was
held that it is trite law that when the admissibility of an extrajudicial statement is challenged,
then the objecting accused must be given chance, to establish by evidence, his grounds of
objection through a trial within a trial.

Section 25 UEA gives an exception to the general rule of involuntariness. The confessions
referred to in section 24 if made after the impression caused by any such inducement, threat or
promise has in the opinion of the court been fully removed, then it is irrelevant.

R v Smith (1959) 2 ALL ER 193

Facts: There had been a fight between persons of two companies and one of them was stabbed to
death. On the same day the police put members of the company on parade and while
interviewing them a police officer made a statement to one of the accused persons that, “I am not
leaving, I am staying until you give me an answer to this fight”. After saying this the accused
confessed that he was the one who stabbed the deceased and the following day police referred to
that statement made by the accused and asked him whether he wanted to make a confession
about it. He was cautioned and he made a written confession. He was convicted and made an
appeal.

The Law of Evidence 1 3 Kobusinge K. Nyakoojo, Lecturer UCU-Mukono

Held: The court of Appeal held that the words were threats i.e. on the previous day and the
confession was inadmissible. On the following day the first threat was operating on the accused’s
mind and the confession was inadmissible. According to Dau v R (1962) EA 9 the effect is that
if the original inducement or threat has disappeared then a later confession is admissible.

In Dau v R

Facts: A mother left the girl with the appellant. When her mother returned, the child had
disappeared. The next day the girl was found drowned in a river and the medical evidence
showed that she had been interfered with sexually. The appellant was arrested and three days
later taken by police sergeant to the river. Without charging or cautioning him the policeman
asked the appellant to point out where he had pushed the deceased into the river. The appellant
said it was where people draw water. The next day the sergeant said to the appellant “You are
going to say what you told me yesterday but I am not going to force you to do so”.

Issue: Whether the sergeant’s words constituted a threat?

Held: The words “You are going to say what you told me yesterday…” did not constitute an
order or threat in the mind of the appellant as they were tempered by words which followed and
any possible effect they might still have had on the appellant would have disappeared by the
words of caution which followed.

Thus where a magistrate or police officer takes a special precaution before taking a statement the
lapse of time between the previous inducement and the taking of the statement and the lack of
any allegation by the accused person that there was any threat or inducement at a later stage after
the caution is given, the confession is admissible. See R v Nanta (1944)11 EACA 83 and
section 25 of the evidence act.

THE EFFECT OF INDUCEMENTS AND THREATS

This is governed by Section 24 of the Evidence Act. The section is to the effect that the
confession made by an accused person is irrelevant if taking into account the state of mind and
the circumstances surrounding the confession - it was caused by violence, threats, force,
inducement or promise calculated in the opinion of the court to cause an untrue confession. It is
important to note the salient elements referred to in the section.

1. The court has to consider the state of mind of the accused during the time the alleged
confession was made. It is therefore mandatory that when the accused person alleges that
he made the confession in any of the circumstances mentioned by the section then the
court should make a finding as to whether the accused person voluntarily made the
confession therefore the state of mind of the accused has to be clearly stated. This is in
line with the position in the case of Emmanuel Nsubuga v Uganda (1992-1993) HCB
24.

The Law of Evidence 1 4 Kobusinge K. Nyakoojo, Lecturer UCU-Mukono

 2. The circumstances in which a confession was made have to investigate to find out
whether such circumstances amount to any of the aspects mentioned in the section. It is
important to note that although the section appears to say that both the state of mind and
the circumstances have to be looked at proof of the items indicated in the section by any
of the two means would suffice.

3. The Violence, force, threat, inducement or promise must be of a nature calculated in the
opinion of the court to cause the making of an untrue confession. It must have been made
to a person in authority i.e. a police officer or magistrate. The nature must be relating to
the commission of an offence according to case of R v Norahma 9KLR 12. The onus of
proving threats, violence, inducement or force lies with the person alleging such.

Section 24 reflects the position which was taken in the case of:

Uganda v Wabwire (1976) 212

Facts: The accused was charged with murder and the prosecution sought to produce a confession
statement allegedly made by him on 16th October 1975 to a magistrate Grade 11 at Iganga. At the
commencement of the trial Counsel for the accused intimated that he intended to challenge the
confession statement and so the trial Judge ordered a trial within a trial to be held. During the
trial within a trial the Magistrate Grade 11 (PW4), the only witness called by the prosecution
during this trial, testified that the accused was brought to his Chambers at Iganga Court by a
police Constable for purposes of making a statement.

Held: The magistrate cautioned the accused in the following terms:

“If you have been forced or threatened or induced in any way by the police to come
here and make this statement you should say so. But whatever you will say shall be
recorded down and may be brought as evidence at your trial at the High Court.”

The accused told the Magistrate that he had not been forced and wished to make a statement
voluntarily. A statement was then recorded in the language of the accused; it was read back to
him and he said it was true and correct. A translation was made in English and the accused
thumb marked both statements and the Magistrate countersigned them.

On Cross examination, when it was suggested to the magistrate that the caution administered was
improper and that the accused had not volunteered the statement as he had been beaten prior to
being taken to him, he (the magistrate) said he did not know what happened to the accused prior
to being brought before him but as far as he could see the accused was normal and fit. He did not
complain of any beating or threat.

The accused, who gave sworn evidence, said that he had been arrested on 8 th October 1975 and
kept in Police custody until 16th October 1975 when he was taken to the court to make a
statement. During that time he was subjected to interrogations and merciless beatings (he showed

The Law of Evidence 1 5 Kobusinge K. Nyakoojo, Lecturer UCU-Mukono

court some scars to substantiate these allegations) and was told to admit having killed the
deceased. Before he was taken to the magistrate he was told to admit or else he would face
further beatings. The statement he made was untrue and it was because he feared the police
beatings that he made a confession; he made it out of fear for his life.

Counsel for the state submitted that even if the allegations of the accused that he was beaten
were true, that was not enough to exclude the statement; the accused must prove that the beatings
and the threats were intended to cause an untrue confession to be made.

Court held as follows interalia:

1. Once a confession is properly recorded it is primafacie admissible. However, the accused

is entitled to challenge such a statement if prior to being made he was induced to make or
made it through fear or threats or through promises and under section 24 of the Evidence
Act. It is for the prosecution to prove beyond reasonable doubt that a confession is
voluntary and the accused need only raise objections to it for there is no requirement in
law that he must prove his allegations of threats or promises.

2. Where the defence challenges a confession a trial within a trial is held and it is during this
trial within a trial that the prosecution must adduce all the evidence relied upon to prove
the voluntary nature of the statement. The prosecution must therefore call witnesses for
purposes of proof and witnesses who have testified before or who might be called later
must be called for the purpose of proving the statement if their evidence is relevant and in
fact for purposes of the trial within a trial any witness whether on the summary of
evidence or not is relevant. The accused is then entitled to give evidence on oath or not
on oath and to call witnesses if any.

3. In a trial within a trial the evidence must be complete by itself but the evidence in the
main trial is not before the court at that stage and although it may be looked at, it cannot
be relied upon to the prejudice of an accused.

4. In the instant case, the prosecution did not comply with the standard procedure in proving
the alleged confession for they did not lay before court all the evidence that as necessary
for it to decide on the issue of admissibility of the confession. The prosecution called
only the magistrate as a witness for purposes of proving the alleged confession yet the
accused made damaging allegations of brutal beatings against the police in his sworn
evidence and showed the court some scars to substantiate these allegations. Since the
prosecution did not call anybody from police to deny these allegations it was extremely
difficult to assume that the accused had lied against the police.

5. The accused in instant case, ought to have been charged and taken to court as soon as he
was arrested and in the absence of police evidence denying the accused’s allegations of
long interrogations, beatings and threats by the police it could not be said with certainty

The Law of Evidence 1 6 Kobusinge K. Nyakoojo, Lecturer UCU-Mukono

 that these allegations were without merit, which doubt in the circumstances of the case
and the evidence before court would be resolved in favour of the accused.

6. The confession was inadmissible since it was made as a result of threats.

7. A confession is generally received by court with caution because the motive of the person
making such confession is often not clear; it is doubtful whether the legislature intended
to enact that the end justifies the means when in section 24 maximum safeguards were
made against extracting confessions made by use of force.

The exception to section 24 is found in section is found in section 26 of the Evidence Act. Under
section 26 confessions otherwise relevant do not become irrelevant because of promise of
secrecy, deception, drunkenness or failure to be warned that such a person was not bound to
make a confession. According to the case of Mwangi v R (1954) EA 377 the general principle is
that the court must have regard to the state of mind of the accused and all circumstances of the
case in admitting confessions.

Confession Against Co accused (section 27 Evidence Act)

Under section 27 when more persons than one are being tried jointly for the same offence, and a
confession made by one of those persons affecting himself or herself and some other of those
persons is proved, the court may take into consideration such confession as against that other
person as well as the person who makes the confession. Under this section the general rule is that
an accused person’s confession can be used against his co accused. However, there are
exceptions to the rule in section 27. According to the case of Nsubuga v Uganda if the statement
intends to exonerate its maker and implicates the co accused then the weight attached to it is very
small. In the case of Abdu Kasujja v Uganda Criminal Appeal 596 of 1964 Justice Keating
said that a confession by an accused person can be used as a basis of the prosecution’s evidence
against the co accused however such evidence needs corroboration and the accused must
implicate himself to the same extent he is implicating the other and he should be exposing
himself by making such a confession to the same risk or even greater risk than the others. The
same principles are contained in the case of Uganda v Kamusuni &Another (1976) HCB 159.

Uganda v Sebuguzi & Others (1988-1990) HCB 18

Facts: The three accused were indicted with murder of the father of A1. In this case all the
evidence of the 7 prosecution witnesses was admitted including an extra judicial statement
recorded from A1 by a grade 11 magistrate who was also a witness for the prosecution. The extra
judicial statement produced as an exhibit at the trial contained the gist of all the prosecutions’
evidence of five witnesses called to testify in court. PW1 a son of the deceased and brother to A1
testified that his brother (A1)who had been staying with A2 moved to the deceased’s house in
December 1984 but soon thereafter started selling the deceased’s property as a result of which a
report of the theft was made to the police before whom A1 admitted the sales. Later, the

The Law of Evidence 1 7 Kobusinge K. Nyakoojo, Lecturer UCU-Mukono

disappearance of the deceased was reported to the Chiefs who convened a meeting at which A1
stated that his father had gone to Bukakata and he was asked by the gathering to bring proof of
this statement on an appointed day. A1 never turned up on the appointed day but later turned up
alleging that his father had given him authority to look after his house. He was taken to the Sub
county Chief before whom he denied the whereabouts of his father. The search for the deceased
started in June 1988, A1 who had in the meantime disappeared from the village reappeared and
was taken to police before he admitted killing the deceased together with A2 and A3. Through
A1’s direction the body of the deceased was dug up from where it had been buried.

In the meantime co accused 2(A2) was arrested. Other evidence was of a land dispute between
the deceased and A2&A3, evidence of the police officer in charge of the case who on top of
arranging the exhumation of the deceased, arranged for medical examination by a doctor and
recording of A1’S extrajudicial statement before a grade 11 magistrate. Medical examination
revealed a fracture of the scale ones and a large crack extending to occipital bones. The cause of
death was bleeding to brain damage.

The extrajudicial statement was in the nature of a confession in which A1 narrated how he got
involved in the plot to kill his father. It started he said, when he moved to live in the house of A2
as a paying guest as his father was mistreating him. When staying with A2, he was told by A2
about the land already mentioned and of the previous unsuccessful attempts to kill the deceased
by A2 &A3 and that he agreed to facilitate the death of his father by A2&A3. That this happened
on one evening when he was digging in his father’s garden where A2 dug a pit and when the
deceased came at about 7.pm to check on his work A2&A3 who were hiding nearby jumped out;
A3 caught the deceased while A2 seized the hoe from A1 and hit the deceased with it twice on
the head. The deceased was pushed into the pit and buried.

A1’S statement was a denial of involvement in the crime and an explanation of how some
properties of the deceased came to be in his house.

During submissions Counsel for A2&A3 argued that the evidence of the extrajudicial statement
needed corroboration or support by independent evidence.

Held: It was held interalia:-

1. Although a confession of a co accused could be taken into consideration against a fellow

accused person, this being of the weakest kind, could only be used as lending assurance
to other evidence but could not be used to form the basis of the case against another
accused. The reason for considering such evidence as the evidence of the weakest kind
was that it was not only hearsay, but it was evidence of such a nature that the co accused
couldn’t test in cross-examination of the maker against him.

2. Credible and independent evidence was required to support such a confession.

The Law of Evidence 1 8 Kobusinge K. Nyakoojo, Lecturer UCU-Mukono

 3. As regards the value of a confession against the maker, it is trite law that a confession
should be taken as a whole it was also clear law that it needed not to be believed as a
whole or disbelieved as a whole. It was open to the trial judge to accept part of the
statement and reject all of it. A1 was found guilty while A2&A3 not found guilty.

In the case of Gopa & others v R (1953) 20 EACA 318 it was held that the weight of evidence
of a confession by an accused against co accused is lessened where he obviously intends to
implicate his co accused and not himself although actually he does fully implicate himself.

Procedure for recording confessions.

The question is to whom and how the confession is made. According to section 23 of the
Evidence Act no confession made by any person while he or she is in the custody of the police
shall be proved against any such person unless it is made in the immediate presence of a police
officer of or above the rank of Assistant Inspector or a magistrate. The section goes ahead to
provide that no person shall be convicted of an offence solely on the basis of a confession unless
the confession is corroborated by other material evidence in support of the confession
implicating that person.

The procedure for recording confessions is found in the Evidence (Statement to Police Officers)
Rules and case law. The procedure for magistrates is illustrated in the case of Uganda v Doyi
Wabwire Kyoyo (1976) HCB 213. Justice Sekandi laid down the following procedure.

1. When an accused person or suspect is brought to a magistrate the magistrate should

ensure that the police or prisons officer escorting the accused leaves the chambers.

2. The magistrate should ask his court clerk to sit in the chambers with him so as to guard
against unnecessary allegations and to act as an interpreter where necessary.

3. The Magistrate should use court paper in recording any statement from the accused.

4. The accused should be informed of the charge against him if in fact he has been charged.
If he has not been charged before, the magistrate should inform him of the allegations
brought by the police as clearly as possible so that the accused is in no doubt as to the
nature of the charge which he is likely to face and upon which the statement is likely to
be adduced as evidence at the trial.

5. Immediately upon being informed of the charge, the magistrate should caution the
accused in the following terms:

“You need not say anything unless you wish but whatever you do say will be taken down
in writing and may be given in evidence”

The Law of Evidence 1 9 Kobusinge K. Nyakoojo, Lecturer UCU-Mukono

 6. Then the accused should be informed that he has nothing to fear or hope for in making a
statement before the magistrate.

7. If the accused volunteers a statement then this should be recorded in the language used by
the accused and an English translation made of it. Both statements should be read back to
the accused who should signify his agreement with the contents with his signature or
thumb mark. Then the magistrate should countersign both statements and date them.

According to the case of Njuguna & others v R ( 1954) 21 EACA 316 it was held that it is
inadvisable if not improper for the police officer who is conducting the investigation of the case,
to charge and record the cautioned statement of the accused. According to the case of Uganda v
Kalema & Another (1974) HCB) 142, it is clearly indicated that such a section means that the
accused should appear before an impartial person who knew nothing about the background of the
case. This means that the courts have to be on their guard to see that the purpose of the exercise
was not defeated by backdoor practices. The accused was interrogated by a police officer who
briefed the magistrate and here the magistrate could not be regarded as an impartial person.

The Law of Evidence 1 10 Kobusinge K. Nyakoojo, Lecturer UCU-Mukono