In Uganda, the Evidence Act stipulates the definition of evidence under section 2 of the Evidence Act

Cap 6 as the means by which any alleged matter of fact, the truth of which is submitted to investigation,
is proved or disproved and includes statements by accused persons, admissions, judicial notice,
presumptions of law, and ocular observation by the court in its judicial capacity. Confession statements
are vital in the criminal justice system since they tend to implicate the accused person and always
pointing to his guilt. This is going to be the crux of our discussion as elaborated hereunder.

The Uganda Evidence Act does not define confessions nor does the Interpretation Act. One can
however, borrow the definition of the Merrium Webster Dictionary, 1a confession is an
acknowledgment of a fact or allegation as true or proven. In Gopa &others v R (1953)20
EACA 318, 2the Judge said that a confession is a direct acknowledgement of guilt on the part of
the accused which is sufficient to convict him. The judge held that although an extrajudicial
statement contains self exculpatory matter it can still be a confession if the self exculpatory
matter does not negative the offence alleged to be charged. It is important to note that this is
different from admissions. An admission may be equivocal as long as it contains matters relating
to the liability of the maker.
It is important to note that confessions have several ingredients. These have been spelt out by
court in different cases. In Uganda under S.24 of the Evidence Act Cap 6, 3it is indicated that a
confession is irrelevant if it appears to court that having regard to the state of mind of the
accused in all circumstances surrounding it, the accused made it out of violence, force or threat,
inducement or promise calculated in the opinion of the court to cause an untrue confession. In
the case of Swami v The Emperor (1939) 1 ALL ER 396, 4the principle was confirmed that a
confession must either admit in terms the offence or all facts which constitute the offence.
Self Exculpatory Matters
The definition is in Swami v The Emperor mentioned supra. It is clearly indicated that it is a
matter adopted or intended to free the maker from blame for the act admitted in the confession.
The other ingredient is that a confession must be admitted as a whole. If it contains some parts
that are inadmissible then it cannot be taken as a confession. In the case of Uganda v Yosefu
Nyabenda (1972) 11 ULR 19, 5the judge clearly stated that the court was to receive the
confession of the accused as a whole and not in several parts and since it contained lies and half
truth then the confession could not be admitted as a true one. A confession has to be taken as a
whole although it does not have to be believed as a whole. The case of Uganda v Sebuguzi &
others (1988-1990) HCB 18 6clearly stated that as regards the value of a confession against the
maker it is trite law that a confession should be taken as a whole.
Retraction of Confessions
1
“Confession.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/confession. Accessed 23 Dec. 2020.
2
Gopa &others v R (1953)20 EACA 318
3
S.24 of the Evidence Act Cap 6
4
Swami v The Emperor (1939) 1 ALL ER 396
5
Uganda v Yosefu Nyabenda (1972) 11 ULR 19
6
Uganda v Sebuguzi & others (1988-1990) HCB 18
An accused person can retract or repudiate a confession. S.24, S.25 and S.276 should be read
together on this. An accused person may retract a confession in two ways:-
1.                  By clear and positive express repudiation.

2.                  By implication.

In Polo v R 17 EACA 150 7the policemen arrested a Congolese and they made a conversation in Kiswahili.
During the trial the accused said there was a misunderstanding between them during the conversation.
The Court took this as a retracted confession. In R v Kengo & Another (1930) 10 EACA 123, 8the accused
made a statement before a magistrate and confessed the murder but during the trial he made an
unsworn statement in which he denied the previous statement, he said he had only heard from
someone else that the deceased had died. In Uganda V Kanunini Edward (1976) HCB 159, 9Judge Allen
held that with regard to retracted confessions, the court should direct itself on the dangers of acting on
it in the absence of corroboration and some material particular except where the court is fully satisfied
in the circumstances of the case that it must be true. In Zenon Zavuru (1993-1993) HCB 7, 10the Court of
Appeal stated that once the appellant had repudiated the confession the trial judge ought to have
directed himself and the assessors to the effect that court had to accept a confession with caution and
had to be satisfied that in all circumstances of the case the confession was true.

What happens when someone has retracted or when the accused denies the confession or challenges
its admissibility?

If the confession is denied by the accused person then the trial judge should conduct a trial within a
trial . 11This in accordance with case of Major John Kazoora v Uganda (1994) 1 KALR 143. The purpose of
the trial within a trial is to decide upon the evidence of both sides as to whether the confession should
be admitted. Court cannot by simply looking at the statement conclude that it was made voluntarily. A
statement that is made voluntarily is one made absolutely free from inducement influence of whatever
nature. In the case of Commissioner of Customs and Excise versus Harz & others (1967) 1 ALL ER
172,12 the court held that it is true that many of the so-called inducements have been so vague that no
reasonable man would have been influenced by them, but one must note that not all accused persons
are reasonable men and women. Therefore, a statement made involuntarily is inadmissible.

THE EFFECT OF INDUCEMENTS AND THREATS

This is governed by Section 24 of the Evidence Act Cap 6. 13The section is to the effect that the
confession made by an accused person is irrelevant if taking into account the state of mind and the
circumstances surrounding the confession - it was caused by violence, threats, force, inducement or

7
Polo v R 17 EACA 150 
8
R v Kengo & Another (1930) 10 EACA 123
9
Uganda V Kanunini Edward (1976) HCB 159
10
Zenon Zavuru (1993-1993) HCB 7
11
Major John Kazoora v Uganda (1994) 1 KALR 143
12
Commissioner of Customs and Excise versus Harz & others (1967) 1 ALL ER 172
13
Section 24 of the Evidence Act Cap 6
promise calculated in the opinion of the court to cause an untrue confession. It is important to note the
salient elements referred to in the section.

The court has to consider the state of mind of the accused during the time the alleged confession was
made. It is therefore mandatory that when the accused person alleges that he made the confession in any
of the circumstances mentioned by the section then the court should make a finding as to whether the
accused person voluntarily  made the confession therefore the state of mind of the accused has to be
clearly stated. 14This is in line with the position in the case of Emmanuel Nsubuga v Uganda (1992-
1993) HCB 24.
The circumstances in which a confession was made have to be investigated to find out whether such
circumstances amount to any of the aspects mentioned in the section. It is important to note that although
the section appears to say that both the state of mind and the circumstances have to be looked at proof of
the items indicated in the section by any of the two means would suffice.
The Violence, force, threat, inducement or promise must be of a nature calculated in the opinion of the
court to cause the making of an untrue confession. It must have been made to a person in authority i.e. a
police officer or magistrate. 15The nature must be relating to the commission of an offence according to
case of R v Norahma 9KLR 12. The onus of proving threats, violence, inducement or force lies with the
person alleging such.
Procedure for recording confessions.
The question is to whom and how the confession is made. According to section 23 of the Evidence Act
Cap 6, 16no confession made by any person while he or she is in the custody of the police shall be proved
against any such person unless it is made in the immediate presence of a police officer of or above the
rank of Assistant Inspector or a magistrate. The section goes ahead to provide that no person shall be
convicted of an offence solely on the basis of a confession unless the confession is corroborated by
other material evidence in support of the confession implicating that person.
The procedure for recording confessions is found in the Evidence (Statement to Police Officers) Rules
and case law. The procedure for magistrates is illustrated in the case of Uganda v Doyi Wabwire Kyoyo
(1976) HCB 213. Justice Sekandi laid down the following procedure.
17
When an accused person or suspect is brought to a magistrate the magistrate should ensure that the
police or prisons officer escorting the accused leaves the chambers.
The magistrate should ask his court clerk to sit in the chambers with him so as to guard against
unnecessary allegations and to act as an interpreter where necessary.
The Magistrate should use court paper in recording any statement from the accused.
The accused should be informed of the charge against him if in fact he has been charged. If he has not
been charged before, the magistrate should inform him of the allegations brought by the police as clearly

14
Emmanuel Nsubuga v Uganda (1992-1993) HCB 24.
15
R v Norahma 9KLR 12
16
section 23 of the Evidence Act
17
Uganda v Doyi Wabwire Kyoyo (1976) HCB 213
as possible so that the accused is in no doubt as to the nature of the charge which he is likely to face and
upon which the statement is likely to be adduced as evidence at the trial.

Immediately upon being informed of the charge, the magistrate should caution the accused in the
following terms:

“You need not say anything unless you wish but whatever you do say will be taken down in writing and
may be given in evidence”

Then the accused should be informed that he has nothing to fear or hope for in making a statement
before the magistrate.

If the accused volunteers a statement then this should be recorded in the language used by the accused
and an English translation made of it. Both statements should be read back to the accused who should
signify his agreement with the contents with his signature or thumb mark. Then the magistrate should
countersign both statements and date them.

Conclusion

According to the case of Njuguna & others v R ( 1954) 21 EACA 316 18it was held that it is inadvisable if
not improper for the police officer who is conducting the investigation of the case, to charge and record
the cautioned statement of the accused. According to the case of Uganda v Kalema & Another (1974)
HCB) 142, 19it is clearly indicated that such a section means that the accused should appear before an
impartial person who knew nothing about the background of the case. This means that the courts have
to be on their guard to see that the purpose of the exercise was not defeated by backdoor practices.
Thus Confession statements are vital in the criminal justice system since they tend to implicate the
accused person and always pointing to his guilt.

18
Njuguna & others v R ( 1954) 21 EACA 316 
19
Uganda v Kalema & Another (1974) HCB) 142
BIBLIOGRAPHY

LEGAL TEXT

Merriam Webster Dictionary (online version)

The Evidence Act Cap 6

Swami v The Emperor (1939) 1 ALL ER 396

Uganda v Yosefu Nyabenda (1972) 11 ULR 19

Uganda v Sebuguzi & others (1988-1990) HCB 18

R v Kengo & Another (1930) 10 EACA 123

Uganda V Kanunini Edward (1976) HCB 159

Zenon Zavuru (1993-1993) HCB 7

Major John Kazoora v Uganda (1994) 1 KALR 143

Commissioner of Customs and Excise versus Harz & others (1967) 1 ALL ER 172

Section 24 of the Evidence Act Cap 6

Emmanuel Nsubuga v Uganda (1992-1993) HCB 24.