DERIVATIVE EVIDENCE IN UGANDA

LAW OF EVIDENCE 1
DERIVATIVE EVIDENCE IN UGANDA
by: Abdallah sekibembe

SAMPLE QUESTION  :

With the aid of statutory provisions and decided cases, discuss the admissibility of derivative evidence in courts of law in Uganda.      

Keane, McKeown, 2011, pg.02 define evidence to mean information by which facts tend to be proved, and the law of evidence being a body of law and discretion regulating the means by which facts may be proved in courts where strict rules of evidence apply. For such evidence to be admissible in courts of law, it must be sufficiently relevant to prove or disprove a fact in issue. This is enshrined under section 4 of the Evidence Act which is to the effect that evidence may be given in any suit or proceeding of the existence or nonexistence of every fact in issue, and of such other facts as are hereafter declared to be relevant, and of no others. Noteworthy, not all relevant evidence is admissible in courts of law as will be discussed later. This evidence can be obtained legally and illegally (derivative), this essay shall restrict its discussion on the latter.
According to black’s law dictionary, derivative evidence is defined as that which is discovered as a result of illegally obtained evidence and is therefore inadmissible because of the primary taint. This literally means that it is evidence which is obtained by means or acts which are illegal and includes evidence obtained by a violation of constitutional provisions statutory or case law as noted by Kyalo Mbobu in his book, the law and practice of evidence in Kenya. Such illegal and improperly obtained evidence could be through trickery, breach of contract, deception, commission of a crime or tort, usage of agent provocateurs, inducements, bribes etcetera.
This essay shall therefore analyze derivative evidence in relation to its common law position (origin), applicability/admissibility in courts of law in Uganda as well as discuss the available exceptions to this position.
As a general rule, the common law position is to the effect that evidence which is relevant to the fact in issue is admissible regardless of how it was procured or obtained; this literally means that evidence is not rendered inadmissible merely by the manner in which it was obtained. Common law therefore recognized no discretion to exclude such evidence. Glover, Murphy, 2012, pg. 53 (13th edition.) allude that discretion to exclude such evidence would only exist in a case where it would deny the accused a fair trial and this would only be based on the prejudicial nature of the evidence and not upon the manner in which it was procured.
The above position is accurately seen in the words of Crompton J in the case of R v Leatham  where he said that “it matters not how you get it, if you steal it even, it would be admissible in evidence”. Various scholars and authors of Evidence law have cited reasons in support of this position and one reason worth taking into consideration for the inclusion for such evidence is to avoid acquittal of the guilty on grounds that evidence was illegally or improperly obtained. A case in point to this effect is one of Kuruma s/o Kaniu v. R  where the accused was charged with unlawful possession of ammunition which had been found in his pocket by officers who were of insufficient senior rank to have carried out the search. Evidence of the search was admitted and the accused was convicted. Lord Goddard, CJ noted that “when it is a question of the admissibility of evidence, strictly it is not whether the method by which it was obtained is tortuous but excusable, but whether what has been obtained is relevant to the issue being tried”. He furthermore went on and noted that the test to be applied in considering whether the evidence is admissible is whether it was relevant to the matters in issue, if it is, then court shouldn’t be concerned with how the evidence was obtained or procured. The same decision was readily employed in the subsequent case of Jeffrey v. Black where the accused had been charged with unlawful possession of cannabis, a poisonous drug after an illegal search on his house; he had however originally been arrested for stealing a sandwich. Court held that the evidence that had been obtained from this search was in fact admissible. 
In the Ugandan context, the law on derivative evidence is quite unclear since legislation is silent on the matter but one could argue that such evidence (derivative) despite being detrimental to the rights of the accused in some instances has been accredited by being provided for by law. An example is section 69 of the Magistrates Court Act Cap 16 which provides that when a police officer has reason to believe that material evidence can be obtained in connection with an offence for which an arrest has been made or authorized, any police officer may search the dwelling or place of business of the person so arrested or of the person for whom the warrant of arrest has been issued and may take possession of anything which might reasonably be used as evidence in any criminal proceedings. This clearly means that the police officer would have to exercise reasonability in procuring such evidence from the accused which discretion in my view could be abused. Another example would be section 315 of the Penal code Act Cap 120 which gives authority to a police officer search any building, vessel, carriage, box, receptacle or place pursuant to a search warrant to this effect. Other provisions that explain this principle are S.26 and 27 of the Police Act Cap. 303, Section 7 of the Criminal procedure Code Act Cap 116.
As an exception to the general rule, evidence which is relevant and otherwise admissible can be excluded on grounds that it was obtained illegally, improperly or unfairly. The argument given for this is that illegally or improperly obtained evidence once included would distort the administration of justice by bringing it into disrepute or jeopardy, courts would therefore check the conduct of the relevant officials with an aim of preserving the integrity of the judicial system. In such circumstances, such evidence would be excluded despite causing injustice which could include the guilty being acquitted.
In their book, Cross and Tapper on evidence, Rupert Cross and Colin Tapper share the same view; they aver that the privilege against compulsory self-incrimination is part of the common law of human rights and it is based on the desire to protect personal freedom and human dignity with an aim of protecting the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is therefore society’s acceptance of the inviolability (importance) of human personality. This is guided by the maxim “nemo tenetur se ipsum prodere” which means that “no man is compelled to incriminate himself” therefore unfairly induced or illegally obtained evidence would be inadmissible in courts of law on this basis.
This position derives its origin from the doctrine of the “fruit of the poisonous tree”, a metaphor initiated by courts in the United States of America whose mode was meant to describe evidence that was illegally obtained. The meaning behind this phrase can be broken down to mean “if the source (the tree) of the evidence is tainted itself, then anything gained (the fruit) from it is tainted as well”. This was because illegally obtained evidence is a violation of the Fourth Amendment of the US Constitution. The fourth Amendment is part of the bill of Rights which protects the US people from their persons, property papers from being subjected to illegal searches and seizures. The first precedent to this effect was Silverthorne Lumber Co. v. United States where federal agents illegally seized the claimant’s textbooks and other documents after him evading paying taxes, Oliver Wendell Jr. in this regard noted that to accept such evidence would be a violation of the Fourth Amendment right of the US Constitution.
Reference should also be made to the case of Wong Sun v. United Stateswhere narcotic drug agents unlawfully entered X’s laundry at which point X indicated that Y was selling narcotics. The agents then went to Y who gave up Wong Sun as his supplier. All the three were released and some days later, Wong Sun returned to the police station involuntarily to make a sentence which was later used by court in this case.  Court noted that confessions made by X and Y were illegal since these were obtained through illegal detentions as opposed to Wong Sun’s confession which was made involuntarily (This will be discussed later).
In Uganda, the law in this regard is quite unsettled. However, Article 27 of the Uganda Constitution tries to control unlawful seizures and searches. It is to the effect that no person shall be subjected to unlawful search of the person, home or other property of that person, unlawful entry by others of the premises of that person and no person shall be subjected to interference with the privacy of that person’s home, correspondence, communication or other property.
In relation to the above, where a person has been arrested or detained for purposes of bringing him or her to court or upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, he or she shall, if not earlier released, be brought to court as soon as possible but in any case not later than forty-eight hours from the time of his or her arrest. The argument here would be that the detainment of an accused after the lapse of forty-eight hours would be unlawful and any evidence through confession procured during this time is illegal or improper as this would be a violation of a statutory provision. This was seen in the case of Namulobi Hasadi v. Uganda where the appellant accused claimed to have spent a week in custody beyond the required forty-eight hours as provided for under the constitution. The appellant had been indicted for murder and the cause of death according to post mortem reports was through suffocation occasioned by strangling. The same position was accurately applied in the case of Uganda v Kawaludio Wamala where X, accused of rape had been in custody for over ten days and evidence in form of confessions had been extorted from him after the forty-eight hour period. High court in this case excluded this evidence.
Similarly, confession made by an accused person is irrelevant if the making of the confession appears to the court and having regard to the state of mind of the accused person and to all the circumstances that such confession was obtained through violence, fear, threat, inducement or promises to that effect, such evidence would therefore be excluded. This is in line with section 14 of the Prohibition and prevention of torture Act which stipulates that any information, confession or admission obtained from a person by means of torture is inadmissible in evidence against a person in any proceedings. It is therefore proper that court satisfies itself that all confessions were not obtained in such ways (as noted above) before admitting them. A case in point is one of Joseph Byarugaba v Uganda where the appellant, an inspector of police in charge of Nalufenya police station, was charged with two counts of attempted murder and unlawful wounding of two complainants who had been arrested on suspicion of being concerned of the murder of an unarmed person. They were not formally charged with murder or any other offence but were according to the police, taken to Nalufenya police cells to help the police in their inquiries. One night at about 10.30pm, the appellant had the two complainants handcuffed and took them to a place about 50 yards outside the police station having armed himself with a loaded revolver. The appellant then fired several shots from his revolver which were heard by policemen on duty in the police station which shots according to the police men were made deliberately hence wounding them on the shoulder and check. The two men ran away and reported what had happened at the Jinja Military barracks. The appellants however claimed he had been ambushed by a large number of men hence the shots. On this finding the court acquitted the appellant of attempted murder but convicted him of the alternative count of unlawful wounding. Another case herein is one of Namulobi Hasadi v Uganda where the appellant alleged that he had been subjected to torture for a week by officials to obtain a confession from him. This however failed and his conviction sustained since a witness with whom he shared a prison cell from the time of his arrest testified against his allegation. Also see Walugembe Henry, Paul Ssande and Kamanzi Joseph v Uganda where the appellants, accused of robbery were tortured to obtain confession from them.
However, where confession from an accused person is procured voluntarily, then such cannot be set aside for purposes of evidence in court. This happens where evidence is given by choice, without inducement, coercion, torture or any other means; it would therefore be safe for court to rely on such evidence. The locus classicus to this effect is the case of Wong Sun v. United States (as already discussed) where Wong sun involuntarily went to a police station and gave evidence which court in that case found admissible. Another case is one of Mutatiina Godfrey, Mushaija James v. Uganda where it was submitted for the appellants accused for murder that the charge and caution statements attributed to each of the appellants had not been made voluntarily. They therefore alleged that they were forced to thumb mark already prepared statements. The court of Appeal upholding the position of the trial court noted the appellants had willingly admitted to the charges and had thumb marked their respective charges voluntarily thus setting aside their argument. Therefore section 25 of the evidence act provides that where evidence is obtained without violence, force, threat, inducement or promise in other words” voluntarily”, it is rendered admissible.
In any case, one should also note that where a statute or provision of the law requires strict observance and adherence to a particular procedure in obtaining evidence of certain kinds from the accused, courts will reject such evidence as it will also be rendered to as inadmissible since it was illegally obtained. This was seen in the case of Scott v Baker where a 1967 act introduced the offence of driving after consumption of excess alcohol. It laid down a procedure which required the suspect to provide a laboratory blood sample or urine sample and the first step was to take a breath test which was a step to step basis. This procedure wasn’t followed by the officials hence evidence procured regarded inadmissible. Recourse should also be taken towards evidence of confessions recorded in the language not understood and spoken of its maker. Arguments have been made when such evidence would be inadmissible, if evidence is made in language other than English, it shall therefore be translated and both versions of the statements presented.
Noteworthy, in the determination of whether evidence should or not be excluded, court normally exercises discretion and this based on the facts brought before it, court in most instances would therefore exclude such evidence if its effect would be detrimental to the human rights of the accused.
In conclusion, as noted by Richard Glover in his book, Murphy on evidence, whether the courts should refuse to entertain evidence because it has been obtained by the party tendering it in an illegal or improper manner is a question principally of policy and it, to which in my opinion no clear and satisfactory answer would be given by courts as it normally exercises discretion.

Bibliography:

Adrian Keane, Paul McKeown, The Modern Law of Evidence, London: Oxford University press, 2011

Richard Glover, Murphy on Evidence, Wolverhampton: Oxford University press, 2012

Colin Tapper, Rupert Cross,  Cross and Tapper on Evidence, Great Clarendon street: Oxford University press, 2010

Kyalo Mbobu,  The law and practice of Evidence in Kenya, Nairobi: Oxford University: Law Africa Publishing (K) Ltd , 2013

References:

The Uganda Constitution, 1995
The Magistrates Court Act Cap 16
Penal Code Act Cap 120
Police Act Cap. 303
Criminal procedure code Act Cap 116
Evidence Act Cap 6
Prohibition and prevention of torture Act.
Black’s Law dictionary, 9th Edition

By:
Abdallah Sekibembe
sabdallahkhan.ak@gmail.com
The writer is a student of Law at Uganda Christian University