GENERAL DEFENCES TO CRIMINAL LAW

1. NON-JURISDICTION/LACK OF JURISDICTION

Jurisdiction is the power or authority vested in the court to "decide matters that are before it" or "to take
cognisance of matters in a formal way for its decision." Lack of jurisdiction is therefore a limitation that
relates to trial by the court whose power or authority is in question.

Jurisdiction is a term of comprehensive import embracing every kind of judicial action and that the term
may have different meanings in different contexts. It has been defined as the limits imposed on the
power of a validly constituted court to hear and determine issues between persons seeking to avail
themselves of its process by reference to the subject matter of the issues or to the persons between
whom the issues are joined or to the kind of relief sought (See: AG of Lagos State v Dosunmu (1989) 3
NWLR pt.111, pg. 552 S C). It therefore means and includes any authority conferred by the law upon
the court to decide or adjudicate any dispute between the parties or pass judgment or order. A court
cannot entertain a cause which it has no jurisdiction to adjudicate upon. A court must have both
jurisdiction and competence in order to be properly seized of a cause or matter.

Under section 37 (b) and (d) of the Magistrates Courts Act, when an offence is committed partly in one
local area and partly in another and where it consists of several acts done in different local areas, the
offence may be inquired into or tried by a court having jurisdiction over any of those areas.

2. BONAFIDE CLAIM OF RIGHT

A person has a claim of right where he honestly asserts what he believes to be a lawful claim even
though it is unfounded in law or fact. An honest claim of right may exist even where the accused takes
by force against the will of the owner or where he demands money with menaces. On the strict
construction of the definition under section 254, a claim of right may be interpreted as a defence to
taking and not a defence to conversion.

However, claim of right is a defence that relates generally to offences against property and it has been
suggested that it can apply to conversion. According to section 7 of the Penal Code, a person is not
criminally responsible in respect of an offence relating to property if the act done or omitted to be done
by the person with respect to the property was done in the exercise of an honest claim of right and
without intention to defraud. Although this defence is usually raised in cases of theft, the section covers
all offences relating to property. It should be noted that the section does not require reasonableness. All
that is necessary is that the claim of right must be an honest one.

Bonafide claim of right is closely related to the defence of mistake of fact only that in this case, the
accused is only mistaken in his belief that he is entitled to claim some property. It is a defence in a
charge relating to an offence relating to property. The accused has to show that he was acting with
respect to any property in exercise of an honest claim of right and without intention to defraud e.g., a
person seizes the complainant’s property in order to enforce payment of the debt. The defence will also
stand even where the right asserted by the accused is mistaken. In Ngavana v R, the appellant was
charged with the theft of the heifer and claimed that it belonged to him. The appellant’s animal had gone
missing for some six months and the appellant took the animal from the complainant’s land claiming
that it was his missing animal and called evidence to this effect. The magistrate held that the animal was
the complainant’s property and that therefore the appellant could not have a claim of right to it. On

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 appeal, it was held that where the accused reasonably claims property as his, even if he is mistaken, he
must be acquitted.

In Francisco Sewava v. Uganda, the appellant was acquitted on appeal when he had been convicted of
stealing doors and roofing materials that he claimed as his and which claim he had put forward at his
trial at his trial. It was held that however unfound the claim might be, the appellant should not have
been convicted. In Kamori Johnson v Uganda, it was held that the defence of claim of right is not
available where the appellant claimed that the property belonged to some other person and not him.
3. ACCIDENT
The defence of accident arises from section 8 of The Penal Code Act which provides that a person is not
criminally responsible for an act or omission which occurs independently of the exercise of his or her will or
for an event which occurs by accident. An event occurs by accident if it is an outcome which was not
intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person. In
other words, death may result from a deliberate act, such as a punch, but could be such an unlikely
consequence of that act, that an ordinary person could not reasonably have foreseen that death would result.
An accused that relies on this defence only has to raise a reasonable probability of its existence. Then the
prosecution must prove, beyond reasonable doubt that the death was not accidental.
In Regina v Palmer (1990) 12 Cr App R(S) 585, in the course of an argument with his wife the appellant
fetched a knife from the kitchen to frighten her; the argument turned into a fight in the course of which his
wife received a fatal stab wound. The appellant claimed that the wound was inflicted accidentally, without
any intent to kill or cause grievous bodily harm. The jury rejected the defence of accident but found that the
appellant was guilty of manslaughter rather than murder because his intention did not extend to an intent to
cause death or really serious bodily harm.
In The Queen v Kuzmack, [1955] S.C.R. 292, the respondent was convicted of the murder of a woman. He
and the deceased were alone in a house when the occurrence took place. His defence was accident or self-
defence in a struggle over a knife said by the respondent to have been in the hand of the victim. Apart from
his evidence, there was nothing to show the particulars of what took place. There was evidence that the
respondent and the deceased had agreed upon marriage and that there had been prior dissension between
them over the mode of life led by the deceased. Shortly before the fatal act, they were heard quarrelling. The
Supreme Court of Canada held that the circumstances were sufficient to call for the trial judge to charge the
jury with respect to manslaughter. If the jury concluded upon the evidence that the homicide was culpable, it
was necessary for them to decide as a fact, with what intent the respondent had inflicted the fatal wound. If
they had a reasonable doubt that he possessed the intent required, the prisoner must be given the benefit of
that doubt, and the jury should then consider the offence of manslaughter.
It emerges from those decisions that the threshold for considering the defence of accident must be evidence
sufficient to permit a reasonable inference that the accused did not in fact foresee the consequences of his or
her act. The ultimate issue is whether the court is satisfied beyond a reasonable doubt that the accused
actually intended the consequence of his or her act, whether the accused, at the time of the offence, actually
foresaw the natural consequences of his or her act, i.e., the death of the victim. The essence of his defence of
accident is that, notwithstanding that the act of hitting the deceased was willed and deliberate, the fatal
consequences of the act were by reason of the fight unforeseen by the accused, and hence he lacked the
subjective foresight of death required for the offence of murder. The question in this case then is whether
there is sufficient evidence to permit a reasonable inference that the accused might not have known that
hitting the deceased with such force as he did on the neck was likely to result in her death. If there is, then if

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 the court entertains a reasonable doubt about this element of the offence and it must acquit the accused of
murder and find him guilty of the minor and cognate offence of manslaughter instead.
4. MISTAKE OF FACT
This is provided for under section 9 PCA; a person who does or omits to do an act under an honest and
reasonable, but mistaken belief in the existence of any state of things is not criminally responsible for the act
or omission to any greater extent than if the real state of things had been such as he or she believed to exist.
Mistake of fact generally refers to the mistaken understanding by someone as to the fact of a situation – the
mistake results into the person committing a crime.
A mistake of fact may therefore mean that while a person has committed the physical element of an offence,
because they were labouring under a mistake of fact, they never formed the required mens rea and so will
escape liability for offences that require mens rea.
In the case of Maginga Sultani v R, where the deceased and a woman were lying in a rice field at night after
having sexual intercourse, the accused, on his way to guard his shamba against the threat of wild pigs, saw a
movement in the grass and shone his torch in that direction, but the batteries were weak and he could see
little – he called out asking whether it was an animal or people. The accused then threw his spear at one of
the shadows, hitting and fatally wounding the deceased and was charged with murder.
The court held that the evidence supported the view that the accused did not know that he was throwing a
spear at a man and the charge of murder could not be sustained thus the accused was acquitted.

5. SELF-DEFENCE
In Uganda, this covers the following:
a) Self-defense
b) defense of others
c) defense of property.
The PCA adopts the principles of English law relating to the protection of the person and property. Secion17
of the PCA provides that the use of force in self-defence is determined in accordance with the principle
of English Law. The onus is on the prosecution to establish that the crime was not done in self-defence.
Self-defense or defense of others applies where the person acts reasonably to defend him or herself or
another person from an imminent use of force, in so far as the force employed in defense is reasonable
to avoid the harm feared and is proportional to it. A person should not be criminally responsible when he
or she acts in self-defence or to defend others from an imminent attack, and in doing so uses only
reasonable force to meet that objective. Generally, self-defence is understood to cover the situation in
which a person uses force against the person responsible for posing the imminent threat. It would not
therefore cover the situation where force is used by A against B in response to an imminent attack from
C. The imminence requirement is an essential element in this defense, which distinguishes it from a
premeditated reprisal.
The threat of death or imminent bodily harm in common law approach and under the Rome Statute
Article 31(1)(d)
For this defence to succeed, there must be the existence of a real and imminent threat of death or serious
bodily harm, where the response to that threat did not cause greater harm than the one sought to be
avoided. This should only apply where the person did not knowingly expose him or herself to the threat.
Protection of property should not be among the defences.

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 In this connection we should set out a short quotation from the judgment of the Privy Council
in PALMER V. REGINAM (1971) All ER 1087 at 108.
For this defence to succeed the accused must show that he was under imminent attack. He must establish
that the action he took to defend himself was reasonable.
“If there has been no attack then clearly there would have been no need for defence. If there has
been attack so that defence is reasonably necessary it will be recognised that a person defending
himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury
thought that in a moment of unexpected anguish a person attacked had only done what he
honestly and instinctively thought was necessary that would be most potent evidence that only
reasonable defensive action had been taken. A jury will be told that the defence of self-defence,
where the evidence makes it raising possible, will only fail if the prosecution shows beyond doubt
that what the accused did was not by way of self-defence. But their Lordships consider in
agreement with the approach in De Freitas v. R. That if the prosecution has shown that what was
done was not done in self-defence then that issue is eliminated from the case.”
Okello Lawrence and 2 others vs Uganda Court of Appeal Criminal Appeal No. 187 of 2003 - 3/21/2007
Facts
This is an appeal against the conviction on grounds inter alia that their act of shooting was in pursuit of self-
defence. The appellants were at the material time police officers based at Jinja Police Station. They were
jointly indicted with three counts of murder contrary to Sections 188 and 189 of the Penal Code Act. They
were tried and convicted, and each was sentenced to death.
Decision
For one to plead self-defence there must be an attack, the accused must believe on reasonable grounds that
he or she is in imminent danger of death or serious harm. The accused must have believed it necessary to use
force to repel the attack levelled against him. The force used by the accused must be such force as the
accused believed on reasonable grounds to have been necessary to prevent or resist the attack. The vehicle of
the victims had only one bullet fired at the bumper. The one bullet could not have killed three people inside
the vehicle. Thus, the shooting was not done in self-defence. The appeal failed and the sentence was upheld.

6. DIMINISHED RESPONSIBILITY
See s. 194 PCA
“188A (1) where a person is found guilty of the murder or of being a party to the murder of another and the
court is satisfied that he was suffering from such abnormality of mind (Whether arising from a condition of
arrested or retarded development of mind, or any inherent causes or induced by disease or injury) as
substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the
murder, the court shall make a special finding to the effect that the accused was guilty of murder but with
diminished responsibility.

(3) Where a special finding is made under the provisions of subsection (1) the court shall not sentence the
person convicted to death but shall order him to be detained in safe custody and the provisions of section
104 of the Trial on Indictments Decree, 1971, shall apply as if such order has been made under that section.

(4) The fact that one party to a murder is by virtue of this section not liable to be sentenced to death shall
not affect the question whether any other party to it shall be sentenced to death.”

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 Where it is proved it leads to legal consequences. It leads to a special finding, namely “guilty of murder with
diminished responsibility”. This is different from the ordinary verdict of “guilty of murder.” Despite the
phrasing of section 188A of the Penal Code, the law does not envisage that the court would pronounce two
verdicts separately, in the same case i.e., first that the accused is “guilty of murder” and later that he/she is
“guilty of murder with diminished responsibility”. Nor in our view does it envisage a “trial” of the issue of
diminished responsibility to be held after the trial and conviction on the charge of murder. Diminished
responsibility is an issue of fact. It must be tried along with all other issues of fact arising out of the charge.
It has to be proved on evidence and the assessors have to be invited and allowed to give their opinion on it.
The court’s finding on it has then to be embodied in its judgment from which the ultimate verdict is deduced
and pronounced.

Rukarekoha Felex vs Uganda, S.C. CRIMINAL APPEAL No. 12 of 1998. Facts – on 24th November
1995, the appellant's wife who had been sick, died at around 9:00 p.m. The appellant went to his mother's
house and attacked her with a panga at around 10:00 p.m. accusing her of causing the wife's death. The
mother died as a result of the wounds on the 6th December 1995. The appellant disappeared from the village
from 24th November 1995 until 3rd January 1996. He was arrested and indicted for murder. He
unsuccessfully raised a defence of diminished responsibility both at the trial and appeal. Dissatisfied with
the verdict, he lodged this appeal. Court held that diminished responsibility is said to be a state on mind
bordering on but failing short of the state of insanity. Belief in power spirits, as in anything else, is a natural
process or condition of the mind. It may not be common, but it is not abnormal in the instant case, it was not
established by the defence or otherwise that the applicant was suffering from diminished responsibility.
When he murdered his mother, court held further, that the issue of diminished responsibility is an issue of
fact. It must be tried along with all other issues of fact arising out of the charge.

7. INTOXICATION
S. 12(1) of PCA provides that except as provided in this section, intoxication shall not constitute a defence
to criminal charge.
S. 12(2)
Intoxication shall be a defence to any criminal charge if by reason of the intoxication the person charged at
the time of the act or omission complained of did not know that the act or omission was wrong or did not
know what he or she was doing and (a) the state of intoxication was caused without his or her consent by the
malicious or negligent act of another person; or(b) the person charged was by reason of intoxication insane,
temporarily or otherwise, at the time of such act or omission.
Society is entitled to punish those who of their own free will render themselves so intoxicated as to pose a
threat to other members of the community. The fact that an accused has voluntarily consumed intoxicating
amounts of alcohol (or taken other intoxicants) cannot excuse the commission of a criminal offence unless it
gives rise to a mental incapacity within the terms of section 12 of the PCA. Therefore, mere drinking alcohol
does not count in law otherwise many killers would get off by arming themselves with alcohol before they
go on their murderous missions (see Feni Yasin v. Uganda, C. A Criminal Appeal No 51/2006).
8. INSANITY
S. 11 PCA
A person is not criminally liable if at the time of act or omission he or she suffers from a disease that affects
his or her mind. However, if the disease does not affect the mind the person will be liable

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 Insanity is as a criminal defense means that a mental disease or defect which, at the time of the
commission of the crime, destroyed the person's capacity either to appreciate the criminality of his or
her conduct or conform that conduct to the requirements of the law.

McNaghten Case [1843] All ER Rep 229

The McNaghten (pronounced, and sometimes spelt, McNaghten/McNaughton) rule is any variant of the
1840s jury instruction in a criminal case when there is a defense of insanity:
"That every man is to be presumed to be sane, and... that to establish a defense on the ground of
insanity, it must be clearly proved that, at the time of the committing of the act, the party accused
was labouring under such a defect of reason, from disease of the mind, as not to know the nature and
quality of the act he was doing; or if he did know it, that he did not know he was doing what was
wrong."

The rule was formulated as a reaction to the acquittal in 1843 of Daniel McNaghten, a paranoid, on the
charge of murdering Edward Drummond, whom had mistaken for British Prime Minister Robert Peel.
McNaghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later. The
House of Lords asked a panel of judges, presided over by Sir Nicolas Conyngham Tindal, Chief Justice of
the Common Pleas, and a series of hypothetical questions about the defence of insanity. The principles
expounded by this panel have come to be known as the McNaghten Rules, though they have gained any
status only by usage in the common law and he would have been found guilty if they had been applied at his
trial.

The rules have been a standard test for criminal liability in relation to mentally disordered defendants in
common law jurisdictions ever since, with some minor adjustments. When the tests set out by the Rules are
satisfied, the accused may be adjudged "not guilty by reason of insanity" or "guilty but insane" and the
sentence may be a mandatory or discretionary (but usually indeterminate) period of treatment in a secure
hospital facility, or otherwise at the discretion of the court (depending on the country and the offence
charged) instead of a punitive disposal.

The insanity defence is recognized in Australia, Canada, England and Wales, Hong Kong, India, the
Republic of Ireland, New Zealand, Norway and most U.S. states with the exception of Idaho, Kansas,
Montana, Utah, and Vermont[6] but not all of these jurisdictions still use the Rules.

There are various justifications for the exemption of the insane from criminal responsibility. When mental
incapacity is successfully raised as a defence in a criminal trial it absolves a defendant from liability. It
applies public policies in relation to criminal responsibility by applying a rationale of compassion, accepting
that it is morally wrong to punish a person if that person is deprived permanently or temporarily of the
capacity to form a necessary mental intent that the definition of a crime requires. Punishment of the
obviously mentally ill by the state may undermine public confidence in the penal system. A utilitarian and
humanitarian approach suggests that the interests of society are better served by treatment of the illness
rather than punishment of the individual. Historically, insanity was seen as grounds for leniency.

The House of Lords delivered the following exposition of the Rules:

the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a
sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their

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 satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at
the time of the committing of the act, the party accused was labouring under such a defect of reason,
from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know
it, that he did not know he was doing what was wrong.

The central issue of this definition may be stated as "did the defendant know what they were doing, and, if
so, that it was wrong?", and the issues raised have been analysed in subsequent appellate decisions:

Presumption of sanity and burden of proof

Sanity is a rebuttable presumption and the burden of proof is on the party denying it; the standard of proof is
on a balance of probabilities, that is to say that mental incapacity is more likely than not. If this burden is
successfully discharged, the party relying upon it is entitled to succeed. In Lord Denning's judgement in
Bratty v Attorney-General for Northern Ireland 1963 AC 386, whenever the defendant makes an issue of his
state of mind, the prosecution can adduce evidence of insanity. However, this will normally only arise to
negate the defence case when automatism or diminished responsibility is in issue. In practical terms, the
defence will be more likely to raise the issue of mental incapacity to negate or minimise criminal liability. In
R v Clarke [1972] 1 All E R 219 a defendant charged with a shoplifting claimed she had no mens rea
because she had absent-mindedly walked out of the shop without paying because she suffered from
depression. When the prosecution attempted to adduce evidence that this constituted insanity within the
Rules, she changed her plea to guilty, but on appeal the Court ruled that she had been merely denying mens
rea rather than raising a defence under the Rules and her conviction was quashed. The general rule was
stated that the Rules apply only to cases in which the defect of reason is substantial.
Disease of the mind
Whether a particular condition amounts to a disease of the mind within the Rules is not a medical but a legal
question to be decided in accordance with the ordinary rules of interpretation. It seems that any disease
which produces a malfunctioning of the mind is a disease of the mind and need not be a disease of the brain
itself. The term has been held to cover numerous conditions:

In R v Kemp [1957] 1 QB 399 a hardening of the arteries caused loss of control during which the defendant
attacked his wife with a hammer. This was an internal condition and a disease of the mind.

In R v Sullivan [1984] AC 156 during an epileptic episode, the defendant caused grievous bodily harm:
epilepsy was an internal condition and a disease of the mind, and the fact that the state was transitory was
irrelevant.

In R v Quick; R v Paddison [1973] QB 910 committed an assault while in a state of hypoglycaemia caused
by the insulin he had taken, the alcohol he had consumed and not eating properly. It was ruled that the judge
should have left the defence of automatism open to him, so his conviction was quashed (he had pleaded
guilty rather than not guilty by reason of insanity). This was where the internal/external divide doctrine was
first expressed, probably due to judicial reluctance to hospitalise someone for a condition that could be cured
by a sugar lump. It is doubtful that a jury would have accepted a defence of automatism, but nonetheless the
issue should have been left to them.

In R v Hennessy [1989] 1 WLR 287 [10] a diabetic stole a car and drove it while suffering from a mild
attack of hyperglycaemia caused by stress and a failure to take his insulin. Lane LCJ said at 294

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 In our judgment, stress, anxiety and depression can no doubt be the result of the operation of external
factors, but they are not, it seems to us, in themselves separately or together external factors of the kind
capable in law of causing or contributing to a state of automatism. They constitute a state of mind which is
prone to recur. They lack the feature of novelty or accident, which is the basis of the distinction drawn by
Lord Diplock in R v Sullivan 1984 AC 156, 172. It is contrary to the observations of Devlin J., to which we
have just referred in Hill v Baxter (1958) 1 QB 277, 285. It does not, in our judgment, come within the
scope of the exception of some external physical factor such as a blow on the head or the administration of
an anaesthetic.

In Bratty v Attorney-General for Northern Ireland [1963] AC 386 [11] Lord Denning observed obiter that a
crime committed while sleepwalking would appear to him to be one committed as an automaton. However,
the ruling in R v Sullivan that diseases of the mind need have no permanence led many academics to suggest
that sleepwalkers might well be found to be suffering from a disease of the mind with internal causes unless
there was clear evidence of an external causal factor.

In R v Burgess [1991] 2 QB 92 the Court of Appeal ruled that the defendant, who wounded a woman by
hitting her with a video recorder while sleepwalking, was insane under the McNaghten rules. Lord Lane
said, "We accept that sleep is a normal condition, but the evidence in the instant case indicates that
sleepwalking, and particularly violence in sleep, is not normal."

The courts have clearly drawn a distinction between internal and external factors affecting a defendant's
mental condition. This is partly based on risk of recurrence, whereby the High Court of Australia has
expressed that the defence of automatism is unable considered when the mental disorder has been proved
transient and as such not likely to recur. However, the distinction between insanity and automatism is
difficult because the distinction between internal and external divide is difficult. Many diseases consist of a
predisposition, considered an internal cause, combined with a precipitant, which would be considered an
external cause. Actions committed while sleepwalking would normally be considered as "non-insane
automatism", but often alcohol and stress trigger bouts of sleepwalking and make them more likely to be
violent. The diabetic who takes insulin but does not eat properly – is that an internal or external cause?

Nature and quality of the act

This phrase refers to the physical nature and quality of the act, rather than the moral quality. It covers the
situation where the defendant does not know what he is physically doing. Two common examples used are:
1. The defendant cuts a woman's throat under the delusion that he is cutting a loaf of bread;
2. The defendant chops off a sleeping man's head because he has the deluded idea that it would be great
fun to see the man looking for it when he wakes up.
The judges were specifically asked if a person could be excused if he committed an offence in consequence
of an insane delusion. They replied that if he labours under such partial delusion only, and is not in other
respects insane, "he must be considered in the same situation as to responsibility as if the facts with respect
to which the delusion exists were real". This rule requires the court to take the facts as the accused believed
them to be and follows Hadfield's Trial. If the delusions do not prevent the defendant from having mens rea
there will be no defence. In R v Bell 1984 Crim. LR 685 the defendant smashed a van through the entrance
gates of a holiday camp because "It was like a secret society in there, I wanted to do my bit against it" as
instructed by God. It was held that, as the defendant had been aware of his actions, he could neither have
been in a state of automatism nor insane, and the fact that he believed that God had told him to do this

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 merely provided an explanation of his motive and did not prevent him from knowing that what he was doing
was wrong in the legal sense.

Knowledge that the act was wrong

The interpretation of this clause is a subject of controversy among legal authorities, and different standards
may apply in different jurisdictions.
"Wrong" was interpreted to mean legally wrong, rather than morally wrong, in the case of Windle [1952]
2QB 826; 1952 2 All ER 1 246, where the defendant killed his wife with an overdose of aspirin. He
telephoned the police and said, "I suppose they will hang me for this." It was held that this was sufficient to
show that although the defendant was suffering from a mental illness, he was aware that his act was wrong,
and the defense was not allowed.

Under this interpretation, there may be cases where the mentally ill know that their conduct is legally
prohibited, but it is arguable that their mental condition prevents them making the connection between an act
being legally prohibited and the societal requirement to conform their conduct to the requirements of the
criminal law.
As an example of a contrasting interpretation in which defendant lacking knowledge that the act was morally
wrong meets the McNaghten standards, these are the instructions the judge was required to provide to the
jury in cases in New York State when the defendant has raised an insanity plea as a defense:
... with respect to the term "wrong", a person lacks substantial capacity to know or appreciate that
conduct is wrong if that person, as a result of mental disease or defect, lacked substantial capacity
to know or appreciate either that the conduct was against the law or that it was against commonly
held moral principles, or both.
There is other support in the authorities for this interpretation of the standards enunciated in the findings
presented to the House of Lords regarding McNaghten's case:
If it be accepted, as can hardly be denied, that the answers of the judges to the questions asked by the House
of Lords in 1843 are to be read in the light of the then existing case-law and not as novel pronouncements of
a legislative character, then the [Australian] High Court's analysis in Stapleton's Case is compelling. Their
exhaustive examination of the extensive case law concerning the defense of insanity prior to and at the time
of the trial of McNaghten establishes convincingly that it was morality and not legality which lay as a
concept behind the judges' use of "wrong" in the McNaghten rules.

9. COMPULSION/DURESS/COERCION
S. 14 PCA Compulsion in general
A person is not criminally responsible for an offence if it is committed by two or more offenders and if the
act is done or omitted only because during the whole of the time in which it is being done or omitted the
person is compelled to do or omit to do the act by threats on the part of the other offender or offenders
instantly to kill him or her or do him or her grievous bodily harm if he or she refuses; but threats of future
injury do not excuse any offence.
S. 17 PCA Compulsion by husband
A married woman is not free from criminal responsibility for doing or omitting to do an act merely because
the act or omission takes place in the presence of her husband; but on a charge against a wife for any offence

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 other than treason or murder, it shall be a good defence to prove that the offence was committed in the
presence of, and under the coercion of, the husband.

10. AGE OF CRIMINAL RESPONSIBILITY

S. 88 of the Children Act, 1997 provides that the minimum age of criminal responsibility shall be twelve
years.
This means, acts committed by a person under the age of 12 years do not qualify for criminal prosecution.
11. ALIBI
An alibi is a factual defence which the accused puts forward to explain that he or she was in some other
place at the time the alleged offence was committed.

Uganda v Kasya
Held: An accused who puts up the defence of alibi does not assume the burden of proving the defence. The
burden rests on the prosecution to disprove or destroy the alibi. Court also tackled the question of
circumstantial evidence and said that where that evidence does not point to the guilt of the accused and
where there is other evidence which may rebut the inferences drawn from circumstantial evidence, then that
circumstantial evidence cannot be relied on to convict the accused. Court looked at the inconsistencies in the
prosecution case and held that where such inconsistencies are so grave i.e., if they go to the root of the
offence, then that evidence will not be adduced.

Uganda vs MacDusman Sabuni

Facts: The accused was indicted for robbery. He claimed that at the relevant time he was out of the country
thereby putting up the defence of alibi. He was convicted on the grounds inter alia that he had failed to
prove his alibi and on appeal.
Held: It is established law in Uganda that when an accused person sets up the defence of alibi, the accused
does not assume the responsibility of proving the alibi. The prosecution must instead negative the alibi by
evidence adduced before the defence is put forward or by calling witnesses to give evidence in rebuttal.
Court went on to say that all evidence must be considered as a whole and if some doubt is thrown upon the
prosecution case or if they fail to negative the alibi, then they will not have proved their case beyond
reasonable doubt and the accused will be entitled to an acquittal.

Uganda vs Serapio Tinkamalire

Facts: The accused was indicted with kidnapping with intent to murder. He put up the defence of alibi.
Held: The accused has no burden to establish his alibi. The duty is on the prosecution to disprove it and the
duty of the court is to direct its mind to the alibi set up by the accused and it is only when the court
concludes that the alibi is unsound that the court will be entitled to reject it.

Rwamaro vs Uganda
Facts: The appellant was charged with robbery. He denied the charge and raised the defence of alibi. In its
ruling, the trial court directed that the accused prove his alibi. On appeal,
Held: An accused who sets up a defence of alibi does not assume any burden to prove it. It is the duty of the
prosecution to disprove it. It was a clear misdirection in this case as the appellant had no duty to prove his
alibi, let alone his innocence. The conviction of the accused must be based on the strength of the prosecution
case and not on the weakness of the defence.

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 The position of the law regarding the defence of alibi “It is not the duty of accused person to prove his
alibi. It is up to the prosecution to destroy it by putting the accused person squarely at the scene of
crime and thereby proving that he is the one who committed the crime” – Sekitoleko v Uganda [1968]
EA 531.

Asega & 4 others vs Uganda Criminal Appeal No. 48 of 2011.

Considering the law on alibi, it is trite law that the accused does not have to prove his alibi. Rather it is
the prosecution that must produce evidence to disprove the alibi and this duty/burden does not shift.
Ref: Uganda vs MacDusman Sabuni (1981) HCB 1.

A perusal of the Judgment however indicates that the Magistrate went to great lengths to find fault with
the alibi rather than looking at the strength of the prosecution evidence discrediting the said alibi.
Criminal guilt is established on the strength of the prosecution’s evidence and not on the weaknesses in
the accused’s defence.

12. IGNORANCE OF THE LAW

Section 6 of the Penal Code Act provides that “ignorance of the law does not afford any excuse for an
act or omission which would otherwise constitute an offence unless knowledge of the law by the
offender is expressly declared to be an element of the offence.” This means that ignorance is no defence.

13. INFANTICIDE
Under S. 213 of the PCA, where a woman by any wilful act or omission causes the death of her child being a
child under the age of 12 months but at the time of the act or omission the balance of her mind was disturbed
by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the
effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were
such that but for the provisions of this section the offence would have amounted to murder, she commits the
felony of infanticide and may for such offence be dealt with and punished as if she had been guilty of the
offence of manslaughter of the child.
It is only a woman who can be charged under the section or who can raise the defense of infanticide and the
child killed should be the child of that woman offender and affected by the very circumstances in the section
i.e., not having fully recovered from the effect of giving birth or by reason of the effect of lactation. The
standard of proof in section 213 is not as high as that required for insanity because the defense of insanity
leads to acquittal whereas infanticide has the effect of reducing the charge of murder to manslaughter. The
burden of proof of loss of mind is upon the offender.
In R vs. Namayanja Vol. 20 EACA 204, the appellant an unmarried girl of about 20 years was convicted of
murder of her newly born child. The appellant had never told her parents with whom she lived of the
pregnancy and neither did they know of it. On 5th February 1952 at about 5:30 p.m. the father on going to the
latrine heard a child crying in the pit under him. He and his wife dug out the new born child still alive who
died in hospital at 7:20 a.m. the following day. At her trial, the appellant alleged that she felt unwell on 4th
February and worse on the following day. About 4 p.m. she went to the latrine in order to pass faeces. She
did not know she was going to deliver and whether she had extruded the child or not but that when she was
told of the child in the latrine, she realized that it was hers. It was held that where a newly born child has
been abandoned the issue of a homicidal intent is a matter of inference but the inference must be one beyond
any reasonable doubt before a conviction of murder can be entered. The standard of proof required to show

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 disturbance of the balance of the mind can’t be so high as in the case of a defence resting on insanity and
taking into account the girl’s age, the fact that it was her first baby, the fact that pregnancy was unknown by
the parents, her act of leaving the child without calling for help was due to panic, fear and despair. She was
acquitted and set free.
14. IMMUNITY
 Presidential immunity: The 1995 Constitution of Uganda states in Article 98(4) that while in office
the President shall not be liable to any proceedings in any court. This means that one cannot sue a
sitting President whether nationally

 Judicial immunity: This is enshrined in Article 128(4) of the Constitution. However, disciplining of
judicial officers is covered under Articles 147 and 148 which deal with the mandate of the Judicial
Service Commission.
o See Attorney General v Nakibuule Gladys Kisekka Constitutional Appeal No. 2/2016

 Diplomatic immunity: This is a doctrine of international law, under which states relinquish the
jurisdiction of their courts to entertain suits against diplomatic representatives of foreign states.
Diplomatic privileges and immunities under the Diplomatic Privileges Act, Cap 201 are extended to
the diplomatic agents, representatives, officials and employees of those organisations. The
Diplomatic Privileges Act domesticated certain provisions of the Vienna Convention on Diplomatic
Relations to confer immunity on diplomatic agents from criminal, civil and administrative
jurisdiction of the receiving state. Article 31 (1) of the Diplomatic Privileges Act provides that a
diplomatic agent shall enjoy immunity from criminal, civil and administrative jurisdiction of the
receiving state.

The immunity is conferred on the diplomatic agents, staff, etc for all official functions. This applies to the
officials, spouses and children of the officials among others, against criminal and civil process in their
official capacities. Under the Diplomatic Immunity under the Diplomatic Privileges Act and the Diplomatic
Privileges (Extension to Prescribed Organisation) (Amendment) Regulations, 2014 prescribe officers enjoy
functional immunity. Immunity is not accorded to employees of those diplomatic missions or organisations
who are citizens of Uganda or persons permanently or ordinarily resident in Uganda.
Articles 31 and 32 of the Vienna Convention which are domesticated by the Diplomatic Privileges Act are
reproduced herein below for ease of reference:

“Article 31.
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case
of:
a) a real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes
of the mission;

b) an action relating to succession in which the diplomatic agent is involved as

executor, administrator, heir or legatee as a private person and not on behalf of the
sending State;

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 c) an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions.

2. A diplomatic agent is not obliged to give evidence as a witness.

3. No measures of execution may be taken in respect of a diplomatic agent except in the cases
coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that
the measures concerned can be taken without infringing the inviolability of his person or of
his residence.

4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not
exempt him from the jurisdiction of the sending State.

Article 32.
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under
Article 37 may be waived by the sending State.

2. Waiver must always be express.

3. The initiation of proceedings by a diplomatic agent or by a person enjoying the immunity

from jurisdiction under Article 37 shall preclude him from invoking immunity from
jurisdiction in respect of any counter-claim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall

not be held to imply waiver of immunity in respect of the execution of the judgment, for
which a separate waiver shall be necessary.”

In some cases, the Government of Uganda has covenanted to grant specified international organisations
immunity from all legal processes. International bodies are creatures of sovereign states which determine
their legal status, capacities, privileges and immunities. As a general rule, international organisations are
exempted from the jurisdictions of domestic and contracting authorities and are therefore not subject to any
suits, claims or enforcement proceedings in such domestic forum.

The immunity conferred on international organisations by virtue of extension of immunity under the above
article from civil and administrative process is not absolute. There are several exceptions which include an
action relating to private immovable property situated in the territory of the receiving State. Secondly an
action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or
legatee is excepted. Most importantly an action relating to any professional or commercial activity exercised
by the diplomatic agent in the receiving State outside his official functions is also excepted.

See Clet Wandui Masiga v Association for Strengthening Agriculture in Eastern and Central Africa, Civil
Suit Nos 266, 267 & 268 of 2016

Conclusion
The entire burden to prove a crime is on the state, which also must prove the absence of these defences,
where implicated. In other words, in many jurisdictions the absence of these so-called defences is

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 treated as an element of the crime. So-called defences may provide partial or total refuge from
punishment.

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