THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
Criminal Appeal No. 52 of 2022
(Arising from Standards, Utilities and Wildlife Chief Magistrate’s Court 443 of
2022)
MBAYA KABONGO
BOBS APPELLANT
Versus
UGANDA RESPONDENT
BEFORE HON. MR. JUSTICE MICHAEL ELUBU
JUDGMENT
The Appellant, Mbaya Kabongo Bobs, brings this Appeal against the orders and
sentence of HW Kamasanyu Gladys, Chief Magistrate Standards, Utilities and
Wildlife Court, who convicted him on a plea of guilty on two Counts of: Count 1,
Importation of Wildlife Specimen without a Permit c/ss 62 (2) (a) and (3); and Count
2, Unlawful Possession of Protected Species c/s 71 (1) (b) both of the Uganda
Wildlife Act, 2019,
The background to this matter is that the appellant is a Congolese national. That on
the 14" of April 2022, at Kibaya Village in Bunagana Town Council in Kisoro
District, the Uganda Wildlife Authority received a tip off that someone was en route
ato Uganda from Congo with more than 120 African Grey Parrots crammed in two
wooden boxes. After the appellant had crossed into Uganda, a trap was set and he
was arrested with the birds at the home of one Mugisha Emmanuel in Bunagana
Town Council. The birds were transferred to Kampala and kept at the Wildlife
Education Centre, while the accused was produced in Court and charged. At his
arraignment he pleaded guilty and was sentenced to 7 years imprisonment.
However, being dissatisfied with the manner the matter was handled, the appellant
filed this appeal with three grounds:
1, That the learned Chief Magistrate erred in convicting the appellant in that the
convictions passed against the appellant were wrong in law as the trial Court
never took essential steps to explain and to ensure that the appellant
understood each and every ingredient of Counts 1 and 2 of the charge before
requiring the said appellant to take plea.
Nv
. That the leamed Chief Magistrate erred in law in that the sentencing of the
appellant to seven years imprisonment on each count to run concurrently was
contrary to the law and a miscarriage of justice.
e
|. That the learned Chief Magistrate erred when she imposed an excessive
sentence of 7 years, on each count, the appellant.
The parties have both filed written submissions which are on the court record. They
have been carefully considered and will be referred to in the determination of the
appeal.Ground 1
That the learned Chief Magistrate erred in convicting the appellant in
that the convictions passed against the appellant were in law as the
trial Court never took essential steps to explain and to ensure that the
appellant understood each and every ingredient of Counts 1 and 2 of
the charge before requiring the said appellant to take plea.
‘The complaint is that though a plea of guilty was recorded against the appellant, the
process of plea taking was flawed,
It is argued, firstly, that the appellant did not understand the proceedings; and
secondly, that the essential elements of the offences he was charged with were not
explained to him. He was not therefore heard on each element of the offence as is
required by law. That this failure was fundamental and occasioned a miscarriage of
justice.
‘The respondent opposes this ground and argues that the proper procedure was indeed
followed and no injustice was caused. That the trial Court ensured the appellant
could follow the proceedings and after confirming that the appellant understood the
language obtained a Swahili language interpreter. It is the contention that the charges
were properly explained to him before plea. Then the facts were read back to him
and he confirmed them as true and correct.
It is true that no appeal shall lie for a person who pleaded guilty, except as to the
legality of the plea or to the extent of the sentence. In this case, the appellant is
challenging the propriety of his plea. It is for that reason that this court has
entertained the hearing of this appeal.
From a reading of the record, the facts are that the appellant was produced in court,
for plea, on the 28" of April 2022. He informed the court that he understood the
French and Lingala languages. As a result, the matter was adjourned to get an
3interpreter. When he was produced on the 5"" of May 2022, the appellant stated that
he understood Swahili and was ready proceed. The court had obtained a Swahili
language interpreter and the record shows that the charges were read to the accused
in Kiswahili. It is clear that language was not a contested issue. On the whole, it is
imperative that an accused person understand the proceedings in court. In this case
he unequivocally the accused said he understood Swahili and this court has no basis
to dispute that. I therefore do not agree with the submission that the appellant failed
to follow the proceedings in court.
In answer to count 1, the appellant answered, ‘It is true. I imported the birds into
Uganda from Congo. I was with my friend”.
The Court then recorded a plea of guilty for Count 1.
On the Count 2 the appellant answered that, ‘It is true’ and a plea of guilty was
accordingly entered.
In Count 1, the appellant faced a charge of the importation of wildlife Specimen
without a permit c/ss 62 (2) (a) and (3) of The Wildlife Act. It was alleged in the
particulars of offence that the appellant imported 122 African Grey Parrots from the
Democratic Republic of Congo without a valid permit.
It should be noted that the constituent elements for this offence are:
1. The importation of any species from another country to Uganda
2. Without a valid permit
3. By the accused
The second count was the Unlawful Possession of Protected Species c/s 71 (1) (b)
of the Uganda Wildlife Act.
The essential elements of the offence are:
a. The possession
b. Ofa protected species
c. Without a valid permitd. By the accused person.
Every criminal trial commences with the reading of the charges which state the
offence, and particulars giving information as to the nature of the offence charged.
The plea is the accused persons answer to those charges. It is however, the duty of
the Court to ensure that the accused person is accorded a fair trial during the plea
taking as indeed during the entire trial. There must be particular care to uphold
Article 28 (3) (b) of the Constitution of the Republic of Uganda which states that
Every person who is charged with a criminal offence shall be informed immediately,
in a anguage that the person understands, of the nature of the offence.
It is the duty of the Court to ascertain and ensure that the accused person understands
the substance (nature) of the offences charged particularly where the accused
indicates a wish to admit to the commission of the offence. Every offence is
composed of constituent elements or parts. The onus is on court to explain what
those elements are. The prosecution has a duty to prove all these parts, but if the
accused pleads guilty, or admits, then it should be proved beyond doubt that the
intention was to admit all the elements of the offence. In event any one of them is
contested, then the court must acquit the accused on that particular charge, This
elaborate procedure has been laid out in several cases and ensures any doubt as to
the intention of the accused to accept culpability is eliminated, It meets the standard
of proof of guilt beyond reasonable doubt. The leading case is Adan vs Republic
[1973] 1 EA 445. For the avoidance of doubt I shall reproduce the relevant holding
here:
When a person is charged, the charge and the particulars should be read out
to him, so far as possible in his own language, but if that is not possible, then
ina language which he can speak and understand. The magistrate should then
explain to the accused person all the essential ingredients of the offence
charged. If the accused then admits all those essential elements, the magistrate
5should record what the accused has said, as nearly as possible in his own
words, and then formally enter a plea of guilty.
In the instant case when the charges were read to the accused, he stated they were
true. It is not clear what was true, for example in Count 1 what should have been
clarified is his specific answer to the questions whether he imported the African Grey
Parrots from Congo to Uganda and whether he had a valid permit to import the birds.
‘When he says it was true, itis not clear which part was true, or if he understood what
this particular offence entailed.
The same goes for Count 2, was the admission that he had in his Possession the 122
birds; was he aware that they were a protected species? Did he know what a protected
species was? Did he own a valid permit to have the birds in his possession?
The respondent states that the appellant understood the proceedings, and even
confirmed the facts when they were read to him. The facts outlined to the accused
do not clearly breakdown or explain all the individual elements of the offences he
was charged with.
What was required was for each offence to be broken down to its constituent
elements, then each of these to be put to the accused and his answer on each to be
recorded and evaluated by the Court.
From all the above the process of plea taking did not follow the recommended
procedure and that occasioned a miscarriage of justice.
Since plea taking was not properly done, the proceedings cannot stand. For the above
reasons the first ground of appeal succeeds.
In view of the above the conviction and sentence are set aside.
The original trial suffered fundamental shortcomings in the plea taking process. That
tendered the entire trial defective. It is the view of this court that it would serve the
ends of justice to order a re-trial in these circumstances.In Fatehali Manji v The Republic [1966] 1 EA 343 the general principles
governing retrial were discussed. It states:
in general a retrial will be ordered only when the original trial was illegal or
defective; it will not be ordered where the conviction is set aside because of
insufficiency of evidence or for the purpose of enabling the prosecution to fill
up gaps in its evidence at the first trial; even where a conviction is vitiated by
a mistake of the trial court for which the prosecution is not to blame, it does
not necessarily follow that a retrial should be ordered; each case must depend
on its particular facts and circumstances and an order for retrial should only
be made where the interests of justice require it and should not be ordered
where it is likely to cause an injustice to the accused person,
Thave been guided by the above but also considered that this is a serious offence
going to the root of the management of protected species and wildlife in general.
The matter must receive proper judicial consideration and determination, I have also
considered that the matter did not go to full trial and neither party will be prejudiced
by the order for retrial,
Additionally, because the appellant is a foreign national, he will be held on remand
until he is produced before the Chief Magistrate for re-trial.
Michael Elubu
Judge
17.2.2023