Uganda v Leonida Okello and Ovuru Ayiga (Criminal Confirmation No. 15/1987) [1990] UGHC 46 (13 November 1990)

The Hom. Justice Solvad.

THE REPUBLIC OF UGANDA

IN THE CHILT MAGISTRATES COURT OF ARUA AT PAKWACH

ORIGINAL CRE. INAL CASE NO. 15/87

CRIMINAL CONFIRMATION NO. 47/1990

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UGANDA \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* VERSUS

A I LEONIDA OKELLO \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* ď ATT OVURU AYIGA $\cdots$ BEFORE: The Hon. Mr. Justice G. M. Okello the same are of this are an embed as $\ldots \quad \cdots \quad \cdots$ REVION ORDER $\mathcal{L}_{\text{max}} = \mathcal{L}_{\text{max}} = \mathcal{L}_{\text{max}}$ $\mathcal{L} = \mathcal{L} \mathcal{L} \mathcal{L}$ Company REVISION ORDER

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$\mathbf{r} = \mathbf{r} + \mathbf{r} + \mathbf{r} + \mathbf{r} + \mathbf{r}$ This file was sent to this court by the Magistrate Gradel of Nebbi $\cdots$ $\sim 1.57$ for confirmation of sentence under Section 167 of the MCA'70. The file was placed before me for the purpose. The purpose is the purpose of the purpose

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When I perused the record of the proceedingsin the file, I was of the view that the convictions were improper as the narrated facts do not disclose the commission of the offences charged or at all. I accordingly declined to confirm the sentence and instead I directed the record of the Proceedings to be sent to the DPP for his views as I intended to make a revision order to correct the errors in the record. $\mathbb{R}$

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Writing for the DPP, Nandawula Betty a State Attorney in her letter ref. $6/4/2$ of $20/9/90$ was also of the same view that the convictions were improper as the narrated facts do not disclose the commission of the offences charged or at all. She prayed that the convictions be $\cdot$

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\_ 2 \_ and. the sentence set aside\*---She did not wish. io be heard in the event -x-'^r '—' of a Regisiorial Order being made.

The two accuseds were jointly charged in. count I with-being in possession of articles used in witchcraft Practice contrary to section 5(1) of the Witchcraft Act\* In count ² they were jointly charged with threatening to cause disease to'an un-naned 'person by means of witchcraft contrary to section 3(2) of the -V/itchdraft Act\* Both Accused persons were recorded to have pleaded-guilty to the offence in count Accused 2 did not plead to the offence in'count' but A1 was recorded aa having pleaded guilty to it, When the facts constituting the .'offences were nairated and put to them, both accused persons answered, thusiwi--

^x "A1 - Pacts are correct" "A2 - Pacts are correct"

The Traial Magistrate then recorded thus;-

.? ⁴ ' ⁿThe facts of the case disclose no offence in count II-in respect of the second accused," He then proceeded after receiving -mitigations from the accuseds to 'impose

his sentences,

A.1 was sentenced to twelve months imprisonment in each count. The • • sentences were ordered to run consecutively.

A2 was\* sentenced to ten months imprisonment in count N0|1^t

■^or there to be an offence under section 50) of the Witch craft Act, it must be shown by the prosecution that the article found in,the possession of the accused is by common repute or belief an axticle which is used for the purpose of witchcrapt\* This requirement is made mandatory by subsection 2 of section 5 °£ the Act,

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As for the offence created under section $3(2)$ of the Wichcraft Act it is necessary to show that the Accused person directly or indirectly threatened to cause discase or any physical harm to another person by means of witchcraft or by any other supernatural means.

In the instant case the narrated facts read as follower-Prosecutor Onen Arac, says.

> "In June 1986 A1 bewitched a woman in my clan and that was discovered through consultation of witchdoctor. A1 was found to be a wizard. Following that incident, this year both accused began causing problems of bewitching, as a result of that both were detained at Divisional Headquar ers for safe custody. A group of people went put again for consultation of witch doctors. They discovered that both accused have some dangerous herbs which they have planted. A1 has some tur "rigis" which she uses for bewitch. ing Secondly A1 has buried a model of human being made from mud and has planted "Lenga" onion type of plant upon it. She has made s sort of tomb where upon if she slaughters a red chicken upon that tomb and "lenga" we are supposed to lose a person from my village especially my own line of generation".

From the above, it is clear that none of the accused was found with any article which is used in witchcraft Practice. The articles which A1 is claimed to possess was not seen by anybody. It is claimed that this fact was discovered and revealed after consultation with a witch doctor. Secondly it is not disclosed in the above statement that the

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articles A1 was claimed to posses,is by common repute or belief, an article which is used for the purpose of witchcraft# In the absence of the above | a commission of an offence under section 50) of the Witchy kraft Act or at all is not disclosed!

*- ⁴*

Thirdly the above statement of facts does not disclose that any of the accused person directly or indirectly threatened to cause any body disease or physical harm by means of witchcraft or by any other supernatural means# In the absence of such a# diseizure, a commission of the offence under section 3(2) of the Witchcraft Act is not disclosed\*

For those reasons the convictions of the two accuseds on mere suspeeion are illegal. They cannot stand. They are consequently quashed#- • \*

The Trial Magistrate sentenced A1 to twelve months in each of the two counts and ordered the sentence to run consecutively. The court has power to order, sentences to run consecutively or concurrently. The Principle however is that where a person is convicted of several offences \*n different counts of the same charge sheet, the court should not order the sentences to run consecutively where the twe or more offences arise from the same transaction. It is an established practice that in such situation the sentences are ordered, to run concurrently. See Rv ^owedx Jyfakasa s/o Abdalla (1946), 13 \_EAUA 97.

In that case the accused was found guilty on two counts one for burglary and the other for stealing. He was sentenced to consecutive < • sgntences of ⁷ years on each count, ⁴ He had records of previous conviction^

It was held that the practice where a person commits more than one offence at the same time and in the same transaction is save in very exceptional circumstances to impose concurrent sentence\*

The above is the principle which is applied in determining whether or not to order a concurrent or consecutive sentence^f Since the convictions in the instant case have been quashed for reasons given, the sentences are also hereby set aside. The accused are to be released forthwith if they are still serving the illegal senten^gj

C\\ ^&lt; Kk. Q G. M, Okello J ^U ]) ^G ^E 13/11/90