Mbaya Kabongo v Uganda (Criminal Appeal 52 of 2022) [2023] UGHCCRD 70 (17 February 2023)

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 $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$ Versus RESPONDENT $\cdots \cdots \cdots \cdots \cdots \cdots$

UGANDA

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^th 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

to 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. - 2. That the learned 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. - 3. 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^th 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

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interpreter. When he was produced on the 5^th 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. Of a protected species - c. Without a valid permit

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d. 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 *language 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 in a 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

should 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, it is 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 rendered 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.

I have 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

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