QUESTION 5.

Article 28 of the Constitution of the Republic of Uganda 1995 provides for the rights of the accused to
be deemed innocent until he/she pleads guilty, or is proven guilty.

ATTEMPTED MURDER.

Attempted murder is defined as “the failed or aborted attempt to murder another person. It consists of
both action and intention, and a person must take a direct step towards killing and must have the
specific intent to kill that person. ‘

There must be an overt act manifesting the intention and “direct act” has been defined as “an act
directed toward another person that indicates an intent to kill or harm and that justifies self Defence”
according to Marriam Webster Legal Dictionary.

Sec. 204 (a) of the Penal Code provides the ingredients to sustain the charge of attempted murder and
these include;

1. Unlawful intention to cause death.

2. Overt act manifesting that intention.

3. That the Accused committed the offence or participated in its commission.

4. Where there is more than one Accused person, that there was a common intention to execute an
unlawful purpose.

(b) With intent, unlawfully to cause the death of another, does any act or omits to do any act which it is
his or her duty to do, such act or omission being of such a nature as to be likely to endanger human life.

Commits a felony and is liable to imprisonment for life, and the punishment for attempted murder is
therefore life imprisonment.

Attempt is an inchoate offence; that is committed in the execution of another offence.

It has been established by case law that “one may harbour at the same time, both an intent to cause
serious physical injury and an intent to cause death” in people vs McDavis 97 AD 2/302 as echoed Justice
Flavia Senoga Anglin in Uganda vs Muwanga and Anor( Criminal Session 456 of 2018)[2021] UGHC 17 (12
February 2021).

Section 101 of the Evidence Act provides that “He who alleges must prove”.

In determining a case of Attempted Murder, one must bear in mind the established principles of law
that the burden of proof is upon the Prosecution to prove the guilt of the Accused person(s) beyond all
reasonable doubt.
The burden never shifts to the Defence except in a few exceptional cases provided for by the law.

The prosecution is enjoined to prove all ingredients of the offence to the required standard, and where
there is more than one Accused person the participation of each and every one of them has to be
proved.

When the accused raises a Probable defence, the duty still remains on the Prosecution to prove that,
despite the defence, the offence was committed by the accused or that the accused participated in thew
commission of the offence. I refer to Lubogo vs. Uganda [1965] EA 559, Woolmington vs. Director of
Public Prosecutions (1935) AC 462.

The Accused has no burden to prove his or her innocence. It is trite law that the accused person is
deemed innocent until he/she pleads guilty or is proven guilty.

In Sekitoleko vs. Uganda [1967] EA 531,the standard of proof required is not proof to absolute certainty,
nonetheless, the Prosecution evidence should be of such standard as leaves no logical explanation to be
derived from the facts, except that the Accused committed the offence”.

In Deo Metsonga v Uganda (1996) 6 KALR 9; The court held that the essential ingredients for the offence
of attempted murder are that;( shot at a car)

The appellant intended to kill the victim

The appellant had started to execute the said intention

In Teopista Tusungire & anor. V Uganda HCCC 5/96 Vol. 6 KALR 75 The court stated that the prosecution
had to prove the full intent to murder, (malice aforethought). In that case, the appellant was charged
with attempted murder, having burnt the legs and hands of the victim, who left her to go with injuries.
The court held that it couldn’t be held that the appellant had formed the intention to kill the victim but
were interrupted in their effort to do so. The offence had therefore not been proved.

Therefore, in order to convict for attempted murder, it must be shown that the appellant intended to
consummate a particular crime. (this requires the mens rea) this can be proven circumstantially by
evidence of what the accused did. If they are consonant with the intention of murder, they will be
sufficient to prove mens rea. Even the confession of the accused may serve as proof of intention.

R v White [1910]2 KB 124; In this case, the defendant had poisoned his mother with the intent to kill
her. However, the victim died of a heart attack before the poison could take effect. The court found him
guilty and convicted him of attempted murder.

It is also important to note that with attempted murder, the act that amounts to attempt should be
more than preparatory. It should be proximately close to the actual offence of murder.

R v Jones [1990]3 ALL ER 886; In this case, the accused was also charged with attempted murder after
pulling out a gun on his ex-wife. He argued that his acts had been merely preparatory since he hadn’t
pulled the trigger. However, the court held that the drawing of the gun was proximately close to the
actual offence and he was therefore guilty of attempted murder.

MANSLAUGHTER

Manslaughter is a crime where the ingredient of malice aforethought is not proven by the prosecution.
It is a substitute for murder where the defendant raises defences that don’t lead to full acquittal, but
however, serve to lessen the gravity of the offence.

Manslaughter is provided for under section 187, and the punishment provided for under Section 190 of
the Penal Code Act.

Section 187 states that any person who by an unlawful act or omission causes the death of another
person, commits the felony termed as manslaughter. Under the same section, an unlawful omission is
an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or
health, whether such an omission is or is not accompanied by an intention to cause the death or bodily
harm.

Under Section 192 of the Penal Code Act, when a person who unlawfully kills another under
circumstances which, would constitute murder, does the act which causes death in the heat of passion
caused by sudden provocation, and before there is time for his or her passion to cool, he or she commits
manslaughter only. Manslaughter and murder are both homicides.

They have ingredients that are common between both of them;

1. Death of a human being

2. The death was caused by an unlawful act (Uganda v Owora Phillip Criminal session 67 of 2004); The
court held that every homicide is presumed unlawful unless authorised by law. In that case, the court
held that the accused had no legal excuse or justification to do so.

) 3. The death occurred within a year and a day (Section 198.1 states that a person is not deemed to
have killed another if the death of that person does not take place within a year and a day of the cause
of death.) r v Dyson [1908]2 KB 454

4. It is the accused that committed the unlawful act

R v Instant (1893)1 QB 450, the accused was convicted of manslaughter for having denied an elderly
food in a nursing home.

In the case of R v Watson (1959) QB 134, the defendant’s child suffered scalds, and died three days
later, the parent lived only 3 blocks away from the doctor but didn’t send for the doctor until the child
was dead. He was convicted of manslaughter.

According to Smith and Hogan, Criminal Law; it is a diverse crime covering all unlawful homicides which
are not murder.
This is because murder is a crime of specific intention, i.e. malice aforethought. It is different from
murder because there is usually no intention to kill.

This was enunciated in the case of Andrews v DPP [1937] 1 ALL ER 552, where Lord Atkin stated that
the law recognizes on the one hand based mainly, though not exclusively, on an intention to kill and
manslaughter on the other, absence of an intent to kill.

Manslaughter is usually what substitutes murder when the prosecution fails to prove the ingredient of
malice aforethought, which is essential to the crime of murder.

A person can also be convicted of manslaughter by raising a number of defences to the charge of
murder. These defences are known as partial defences. They have the effect of reducing the charge of
murder to manslaughter.

These defences include;

Mistake of fact under section 9

Intoxication under section 12 (Feni Yasin v Uganda criminal appeal number 51 of 2006); The appellant
admitted that he caused the death of the deceased but argued that he was entitled to the defences of
provocation and intoxication. The court held that mere drinking does not count in law otherwise many
killers would get off by arming themselves with alcohol before they go on their murderous missions.

Provocation under section 192 and 193 etc. In the Feni Yasin case sighted above, the court held that
there must have been a deprivation of self-control from the conduct of the deceased, which was absent
in the above case and thus the mens rea for murder was present. The conviction was upheld.

Insanity

These defences do not relieve the accused of criminal liability but rather reduce the gravity if the
offence. They do this to negative mens rea.

Case Law; R v Byrne [1960]2 QB 396. The appellant admitted strangling a girl in a hotel and cut her up
into pieces. It was discovered that he suffered from an abnormality of the mind of a perverted sexual
desire and therefore, instead of being convicted of murder he was convicted of manslaughter.

Therefore, where it is proven that the accused lacked the sufficient mens rea for murder, the offence
will be manslaughter.

MURDER

What distinguishes murder from manslaughter is the specific intent. In both, the ingredients of
homicides are present but only the criminal mind.
Section 188 of the PCA states that any person who of malice aforethought causes the death of another
person by an unlawful act or omission commits murder. And the punishment under section 189 is death.

The legal presumption is that all homicides are unlawful save where death is a result of an accident or
authorised by law.

According to Prof. Lillian Tibatemwa, in her book offences against the person Homicides and non-fatal
assaults in Uganda , she opines that murder is a crime of specific intent. That is to say, Malice
aforethought is required for the charge of murder to successfully stand.

Uganda v Ocan (criminal session 363 of 2018); it set down ingredients;

Death of a human being occurred (post mortem report from the medical officer of kitgum government
hospital.)

The death was by an unlawful act (all homicides are presumed unlawful see; r v gusambizi s/o wesonga
1948 15 EACA 65. In the above case, the medical reports showed very serious damage to the deceased’s
body

The unlawful act was actuated by malice aforethought (it is difficult to prove by direct evidence; courts
will consider the weapon used; this case it was a big stick about the size of an arm stick.

The accused caused the unlawful death (the court relied on prosecution witnesses who had seen the
accused beat up the deceased.

This criminal mind is important for it will be a determining factor of the accused’s criminal liability.

Section 191 states that malice aforethought shall be deemed to be established by evidence providing
either of the following circumstances.

a) An intention to cause death of any person, whether such person is the person actually killed or not.
(express malice) b) Knowledge that the act or omission causing death will probably cause the death of
some person, whether such person is actually killed or not, although such knowledge is accompanied by
indifference whether death is caused or not, or by a wish that it may not be caused. (implied malice)

Malice aforethought might not be proven by direct evidence but can be deduced from the
circumstances surrounding the killing. Like the mode of killing, the weapon used and the part of the
body assailed/ attacked. In short, Malice aforethought is the intention to cause death.

The circumstances that make death excusable include defence of the person or property as stated in
Gusambizi Wesonga vs R (1948) 15 EACA 65.

In Ogwang Vs Uganda, [1992] 2 EA (SCU), in order to determine whether the death was with malice
aforethought, the circumstances must be taken into account surrounding each particular case. They
include the nature and number of injuries inficted, the part of the body injured, the and is liable to suffer
death. To be able to determine what amounts to rape, its pertinent to identify the ingredients of the
offence of rape. The burden of proof is always on the shoulders of the prosecution requiring them to
prove all ingredients beyond reasonable doubt.