A CRITICAL ANALYSIS OF THE ROLE OF COURT ASSESSORS IN THE

ADMINISTRATION OF JUSTICE IN UGANDA: A CASE STUDY OF THE

CRIMINAL DIVISION OF THE HIGH COURT OF UGANDA

BY

ASIIMWE MEDARD

LLB/47049/ 152/DU

A RESEARCH REPORT SUBMITTED TO THE SCHOOL OF LAW IN

PARTIAL FULFILLMENT FOR THE REQUIREMENT OF BACHELORS
DEGREE AT KAMPALA INTERNATIONAL UNIVERSITY

SEPTEMBER 2018
 DECLARATION

I ASHMWE MEDARD do declare to the best of my knnwlectgc thnt this

rl'scarch report titled THE ROLE OF COURT ASSESSORS IN THE
ADMINSTRATION OF JUSTICE IN UGANDA: A CASE STUDY OF
CRIMINAL DIVISION OF THE HIGH COURT OF UGANDA is my original
work and it has never been submitted by any institution or university for
any academic award.

ASIIMWE MEDARD

Signature .. -~'"-· .................... . Date.l?c\! A?:-P.I.~.. : .................... .

 APPROVAL

This special research report has been submitted to school of Law with the
approval from the academic supervisor.

Supervisor

MR. PETER MASABA

Signature ... ~~~·········· (~ \11 )'0

Date .................................... .

ii
 DEDICATION

I wish to express my sincere gratitude to Mr. Peter Masaba Lecturer

Faculty of Law,

Kampala International University for his valuable, ac!\'icc ;mel criticisms

\\'ithout which the exercise could not have been successrul. f must also
thank all my friends who I could not mention by name ror all the help they
gave me, either directly or indirectly.

iii
 TABLE OF CONTENTS

DECLARATION ............................................................................... . . .. . .. . . .. . . . .. . .. .. . .-. . i

APPROVAL ....................................................................................... . ······· .... ii

DEDICATION ................................................................................... . . .. iii

TABLE OF CONTENT.............................................................. . . ............. .......... iv

LIST OF STATUTES ......................................................................................... . .......... vii

LIST OF CASES ................................................................................. . ..... viii

LIST OF ABBREVIATIONS ......................................................... . . ....... ix

ABSTRACT ....................................................................................... . . ... X

CHAPTER ONE .................................................................................................. . . .......... 1

1.0 Introduction ............................................................................ . . ... 1

1.2 Theoretical Framework ........................................................ . .. 6

I .J Statement of the Problem ................................................... . .7

1.4 Justification of the study ....................................................................... . 8

1 .5 Objectives of the study .......................................................................... . 9

1.5. 1 General objective ................................................................ . . .. 9

1.5.2 Specific Objectives .............................................. :.............. . .... 9

1.6 Scope of the study ................................................................... . . ......... 10

l .6.1 Content scope ......................................................................... . 10

1. 7.2 Time scope ............................................................................................. . .10

1.7.3 Significance ofthe study ...................................................... . 10
1.7.4 Conclusion ............................................................................ . .11

CHAPTER TW0 .......................................................................................................... 12

Literature Review . .................................................................................................... 12
2. 1 Introduction .............................................................................. . . 12

2.2 Impact of assessors in the administration of justice .. . . 12

2.3 Effectiveness of Assessors .................................................... . . ............. 13

2.4 Competence of assessors in the administration of justice. ········· 14

iv
2.5 Mini- Conclusion ......................................................................................................... 20

CHAPTER THREE ..................................................................................................... 21

Legal Framework ...................................................................................................... 21
3.1 Introduction ............................................................................. . ... 21

3.2 The Constitution of Uganda 1995 as Amended ......... .. .. .... 21

3.3 The Trial on Indictments Act Cap 23 ......................... .. .. ... 23

3.4 The Evidence Act Cap 6 ................................................. .. .28

3.5 Mini- Conclusion ................................................................... . .. ....... 28

CHAPTER FOUR ........................................................................................................ 3D

Research Methodology, Presentation and Anaiysis of the Findings on the
objectives .................................................................................................................... 30
4. l Introduction .............................................................................................. . .. .... 30

4.1 Research Methodology ......................................................................... .. .. ... 30

4. 1.1 Introduction ........................................................................... . .. ......... 30

4.2.2 Research design .............................................................. . ..... 30

4 .2.3 Area of study ...................................................................... .. .. .... 31

4 .2.4 Research instruments ................................................... .. .. .... 31

4.2.5 Documentary Study .......................................................... . .. ....... 31

4.2.6 Online Research ............................................................... . .... 32

4.2. 7 Data analysis .................................................................... . .. .... 32

4. 2. 8 Research procedure ........................................................... . .. ... 32

4.2. 9 Limitations ............................................................................ . . .... 32

4.2. 10 Chapterization ......................................................................................... . ..... 33

4.3 Relevancy of court assessors .................................................. . .. .... 38

4.3 Competence of assessors ....................................................... . .42

CHAPTER FIVE .......................................................................................................... 48

Recommendations and Conclusion ..................................................................... 48
5. 1 Introduction ............................................................................. . .. .. 48

v
5.2 Recommendations ............................................................ .
. ······ 48
5.3 Conclusion ........................................................................... .
·········52
l~eferenees ....................................................................................... .
···················54

vi
 LIST OF STATUTES

The Constitution of the Republic of Uganda 1995

The Trial on Indictments Act Cap 23

The Evidence Act Cap 6

The criminal Procedure Act cap 116

The Penal Code Act Cap 120

I CJU2 Order in Council

vii
 LIST OF CASES

Byaruhanga Fodori Vs Uganda (Cr. Appeal No.24 Of 1999) [20021 UClCA 4

(8 May 2002);

F!akubye Muzamiru Jjumba Tamale Musa Vs Ugancl<i (Criminal Appeal

N0.56 OF 2015.) (2018] UGSC 5 (17 January 2018);

(;irisornu Bakaye and Others Vs Uganda [1965] E.A. 621,

(l()(Jrrcy Tinkarnalirwa and another v Uganda Unreported

l'v1ahlikilili Dhalarnini and ors v. R, [ 1942] Appeal Cases 583, pp.

Ndirangu s/o Nyagu v R (1959] EA 875

Ug<mda v Charles Kangameito unreported

Uganda v Kawoya (Criminal Case No. 044 of 2011) [2011) UGHCCRD 03 (5

January 2014);

Uganda v Hussein Hassan Agade & 12 Ors (Criminal Case No. 0001 UF
lUlU) [2016] UGHCICD 1 (26 May 2016);

!~ex v. Ndembera East African Court of Appeal (EACA) in 194 7

1-iich<Irdson v Redpath Brown & Co Ltd [ 1944] AC 62

Washington v R (1954) 51 E.A.C.A

Uganda v Semanda (HCCS CASE NO: 111 OF 2013) [2016J UGHCCRD

139

viii
 LIST OF ABBREVIATIONS.

AC Appeal Cases

EA Evidence Act

EACA- East African Court of Appeal

,J LOS - ,Justice Law and Oder Sector

T!A- Trial on Indictments Act

PCA- Penal Code Act

NWJ - Non Government Organization

UJC Order in Council

ULRC- Uganda Law Reform Commission

ix
 ABSTRACT

Colonialism typically involved the large-scale transfer of Iuws and legal

institutions from one society to another. The result wns a dual legal
system: one for the colonized and one for the colonizers, casting the latter
as sole possessors of law and civility.

The introduction of colonial law promoted cultural lransform<Hions among

colonized peoples, yet also established limits to these transforma lions, cmd
provided opportunities to resist and negotiate colonial power. Legal
conflicts between colonizer and colonized were shaped lJ\ :i urisc!ictiona I
jockeying' between competing colonial authorities, and were affected b:-·
fnctions within colonized population.

Although the first part of this article traces the origins of the institution of
English and imperial judicial assessors, the main considcratio11 is not
primarily the evolutionary change in the place of Ugattd:m asst'ssors in
colonial courts Rather, the focus lies on the tensions between then
aspirations of colonial legal systems, and the fact thai questions have
arisen as to whether their role is still relevant given the fact !.hat their
continued existence seems to have outlive.d the pttrposc of their
m trocluction. The researcher uses Landmark legal cctscs, Opinions of
Judges, Lav.ryers, and the general Public collected from Legal Journals and
Newspaper articles to mention but a few to illustrate the role of assessors.

X
 CHAPTER ONE

1.0 Introduction

Douglas Brown 1 defines an assessor in law is a person who is appoimcd to

nclvise the judge. A person learned in some particular science ur industry,
which sits with the judge on the trial of a cause requiring such special
knowledge and gives his advice2. In Uganda Assessors nrc also common
l'mctice and the Law on criminal procedure dictates that the Presiding
.Judge should invite in Assessors.

To begin with, I should clarify that the title "assessor" clews not imply any
decision making powers. Instead, the word originates directly from the
Lttin assessor, meaning a counselor, an assistant, or u person who sits
1\"Jtll another to give advice. In the judicial context, it cit·Jwtcs: "'11 person
\\"ho, by virtue of some special skill, knowledge or experience he possesses,
sits with a judge during judicial proceedings in order to answer any
questions which might be put to him by the judge on the subject in which
lw is an expert." It is also important to note the fact th:Jt Hsscssors L:1kc

dii!",Tcnt kinds and these may range from lay persons to profcssionuJ or
cxpnl assessors. The latter speak from the technical expertise knowledge
whereas Lay assessors on the other hand are with the lR\" man's
interpretation of the situation as they see and perceive it.

True to reality however is the fact that the· use of assessors in 1he
administration of justice is premised on the maxim of equity that Justice
should not only be done but should also be seen as being clone.

1Hrown Douglas, Criminal Procedure in Uganda and Kenya { 2nd), London Sweet ;:md Maxwcll,
I !J70 at pg 137,
·Bell: Dig. I, 22; Cod.!, 5!.p

1
Since the existence of Ugandan customs had to be established bel'ore
colonial administrators could be applied in judicial proct'n.!ings, thn faced
tlw challenge of determining the validity of various cusl<nns. Specii'ically,
rile\ had to discriminate between customs that had t lw force of l;n\ und
those that did not, while perhaps having moral or religious sanction. A
more practical challenge was the unfamiliarity cif most colonial judges and
administrators with Ugandan customs. This situation ,,.,,s complicute·cl b1·
tlw multiplicity of Ugandan ethnic, linguistic, and cultunil groups il!·ought
r ogct her under colonial legal and administrative svstcms. At a 1932
conference of East African governors, senior colonial administrators lack
knowkdge that the 'customs of the various tribes were imperfectly known'
<l!1d that their enforcement 'must be attended by the grr·;n,·st cliffintlt" ·,

t >ne approach to this problem was to demand 'prool'' of <tpplintble-

c'UStomary law before it could be accorded judicial notice, and such proof
,,·ns often sought by relying on 'native assessors'. The'w were Ugundw1s
11 lw were presumed to be knowledgeable about loc;il cusloms and
1raditions. They were chosen by colonial officials from the nmks or chiefs,
headmen, elderly men, or 'other natives suitably qualified to aid the
courts'''· These assessors became exponents, interpretcTs, and sometimes
'inventors' of local customs, shaping the processes ;mel ou 1 comes of
,·oloni;.d law and justice.

The tradition of electing court assessors may date bm:k to medieval

English manorial courts, as records refer to elected court assessors·'.

· l\vnn1 National Archives (henceforth KNA), API 1 I 1659, 'Proceedings of thv ('onfereJlU' uf l·:a:c.t
:\fric,ln governors, Nairobi, 1932' ·
• S\\aziland High Court Proclamation, 1938 [revised 1957], section 8
'Anthony Dickey, The province and function of assessors in English courts', Modern Law l~evie\\,
,)3, 5,
I '170. p. 494.

2
,Judicial assessors were certainly present in English Admiralty cour-ts of
the seventeenth century, where the assistance of nautic·al assessors LO

evaluate matters of nautical skill and seamanship was considered crucial.

While most English courts retained the discretion of summoning assessors
in civil proceedings, the practice became progressiveiv rarer in non-
nuut.ical cases. By the early nineteenth century, tlw :\dmimlt\ c·our-ts
rl'mained the only ones in England where judges were n·gulariy ussisted
b:; assessors6.

1
' ibid

3
1. 1 Background

In the Ugandan judicial system court assessors were nwinly introduced

\\ith the advent of the 1902 OIC whereby for the Colonial ,Judges to better
apply the repugnancy test on the Ugandan customs, it wns impemtive that
the\ get to use the benefit of Ugandan court assessors so as to understand
Ugandan customs and judge best as to their repugnance to the test of
natural Justice. The provision of the order in council thClt was later to be
n<~rned the Repugnancy Clause provided that "in all cases, civil and
nirninCll to which the natives are pClrties every court ,,J,iill lx· guid<'ci I))
tt<~tive law so far as it is applicable and is not repugrmnt to justice and
morality or inconsistent with any order in council or any regulation or rule
made under any Order in Council or Ordinance" 7 Presently in the
Ugandan Laws the Court assessors are embedded 111 vHrious Legal
documents .i.e. The Constitution of the Republic ol Uganda I CJCJ!'i i!S

Amended Articles 28(0n fair hearing) and Article 126 2(e) on the premise
thc1t substantive Justice should be administered without undue regard to
technicalities. The Trial on Indictments Act Section 3 requires that Hll
criminal trial in the High Court be conducted with at k<~st 1 II'O asst·ss<,rs.

~;,.,·tion 3 of the Trial on Indictments Act provides that ('Xcept as provided

by any other written law, all trials before the High court must be with the
uicl of assessors, whose number must be two or more.

I !w TIA Empowers Court to summon to its assisl<llll'l' onl' or more

<·ornpt'tent assessors who shall attend and assist accordingly. This study
wlll investigate the effectiveness of the Court assessors as used in Criminal
trials in the High Court of Uganda. The research intends I o by t ht' end of'

~"' ! ron .20 (a) of Lhe 1902 Order in Council.

4
t!Jlo study; question the relevancy of court Assessors by deeply looking at
<ltld analyzing the cases in which they have been used, examine the
positive and negative impact, of assessors, and address the needs if there
be· in the legal system by appreciating the relevant lctws and give
recommendations thereto for the better operationalisation of this rarely
used yet great opportunity.

!·'rom the foregoing submissions, it turns out that lay assPssors clrt' deeply
influenced by their evaluations of fairness and justice in the court.
Procedural fairness and the justice of outcomes are the topic of a growing
branch of social scientific research Overviews on social justice research in
Tyler, Tom. While outcome is about "what the decisions are", proct'clure
rt·lttles to "how decisions are made". Tyler, Tom R. ( 1'JliO)·'. it ttrgtws 1 hat
1 ti'lt n it is hard to decide whether an outcome is jli~l or not. This ts
('Specially true for many criminal verdicts. Judgment about outcomes ts
less certain than those relating to procedure, about which much is known
beforehand.

'Torn R Tyler WHY PEOPLE OBEY THE LAW: Yale University Press 1990.

5
1.2 Theoretical Framework

Woodrow Borah 9 has argued that connected with the modification in the
role of the assessor came in that of crown Attorneys. fn the 17''' Century
the) rendered opinion when called on as protectors of the Indians or when
there was a crown interest somehow intricate .

.1\nother author Adinkrah 10notes that Trial by judge and assessors was
,,·iginally introduced because the British Govern men 1 lwei thought that
t;·iul by jury 'would not doing inter racial cases' and, in thL· present Fijian
Clovernment's view, the same considerations still applied.

Thaddeus B Rada 1 Ialso notes that in the first years of court under Luis clc
Vl'lasco II, the assessor acted as a legal advisor to the \·icnov, who sal in
the audience and gave orders for the appropriate decrees in accordance
with his advice.

n,·itish colonial legal culture differed m vanous parts of Africa. ancl varied
snci;li and political circumstances meant that criminal pmcedures in each
Jllrt sd iction reflected distinctive local concerns abo ul ;·td minis u·a tivc
control and the maintenance of social order. However, the doctrine of
precedent in English common law, by which courts w-e bound (within
prescribed limits) by prior decisions of superior courts, ensured that
JUdicial decisions in one colony could influence decisions in another part
uf the empire.

',Jl.tSlice by Insurance. The general Indian court of Colonial Mexico

··Crime. Deviance and Delinquency, Appendix 14.
' 1 H.HJa, Thaddeus. "The Role of Accountability and Compensation in Assessor Dt~clsion-Aid
i\kglcct." ~lectronic Thesis or Dissertation. Bowling Green State Univers!ly, 201:3. Olllo LINh:
l·~lcctronic Theses and Dissertations Center. 08 Nov 2018.

6
In Rex v. Ndemberal 2 , court reversed the conviction or· a Ugandan for
rnurcler, on the argument that the original trial judge in 1lw High Court or
Uganda should not have convicted the accused bused solely on the
uncontested opinion of native assessors. Beyond the role- of assessors in
c-riminal trials, the judgment also addressed important questions
concerning patriarchal influences and gender biases i11 the opinions or
nwle assessors in trials involving women. As several studies have shown.
colonial courts were often sites of intense gender and generational
struggles over the interpretation of customary law.

1.3 Statement of the Problem.

f mentioned that the role of an assessor 1s generull\ not \'l'l'\' well

unclnstood today. This may be because its use has gained traction only in
the past few years. Second, this may also be due to the fact that there are
myriud contexts in civil and criminal litigation arises, nncl wlwt th(' judge
IYCjt!irc·s from an assessor varies from case to case. It C'<J!l t'\'('ll lw difficult
w tell how useful an assessor's counsel is before the trial begins. Third
and I think this bears a correlation to my second point, the legislation
provides very little guidance on what an assessor can or cannot do. In this
rcgnrd, the Rules of Court only state that the assessm shall r1ssist tht'
l'llurt in dealing with a matter in vvhich he or she has skill rmd experience,
<tile! shall take such part in the proceedings as the Court may direct.
Beyond that, there are no signposts.

The link between judicial assessors in India and Ugand" is clear h\ virtue
"" the Reception Clause 12 of the 1902 Order in Council. The Evidence
Act, applied as such or with modifications in Uganda and stated, statrcd:

· J·:asl African Court of Appeal (EACA) in 194 7

7
 'When the court has to form an opinion as to the existc'tKt' of am< <~c·twral

ntslom or right the opinions, as to the existence of such custom or right.,

"f pe:-rsons who would be likely to know of its existenct:, if it existed, are
relevantJ3

/\\<<;bare Brunol4 has argued that the powerful submissions of both slate
:md defence counsel are enough for a judge to legally \n·ight the scale and
to give a final verdict without any interference whatsoever. The ,Judicial
officer was further at pain when pronouncing judgment to ,,xplain and give
reasons why he dissented from the assessor's opinion< This !lwrel<m·
<Tt':tted a situation and or Lacuna as to whether the role- of an assessor is
.JI.ISl a rubber stamp, a toothless dog, a mere decor or a mere technicality
\\'ithout the effect of influence on the final outcomes of the court's verdict.

Uttder 8. 6815 an advocate or accused can challenge tlw persm1nlit\ ol· tlw
.:~ss,·ssor. If a person is ready to accept that superior» .,, til dcctck 11 h:tt is
tn lle done, the way decisions are made by the authority ap~wars less
i1nportant.

!Is already pointed out the opinion of assessors is not binding t1ll the
'Juc!gt·. The problem that the researcher intended to '"!dress w:ts: ,,·hat
then is their opinion and role in criminal matters?

1.4 Justification of the study

lilt" studv aimed at assessing the effectiveness of ussc;,snrs ;tncl th" mlc
t hn play in the administration of justice. The researcher ,·ollcctcd in cktail

11 Indian Evidence Act 1872, section 48, quoted in M.P. Jain, 'Custom as sou1U of lHw Jn !ndin'.
111 !\Jan Dundes and Alison Dundes Renteln, eds.,Folk lmv: essays in the 1lwor.\' and praclJn· of !ex
JIO!l ...,cripta, Madison, WI: University ofVJisconsin Press, 1995, p. 80.
!'llt' !~ole Of Court Assessors In Uganda 2015
Tn,d on Indictments Act cap 23 laws of Uganda

8
public knowledge and perception on court assessors, round out those
cuun assessors are a mere provision of the law and actucdly in existence
doing work that resonates with all intents and purposes of the legal
provisions that create them. The researcher in addition c:stablishecl that
1 he lcl'NS providing for the regulation of assessors and the regulations
thereto are not sufficient, coherent in providing for boundaries and
drLl\l'ing a distinction as to the roles of a court assessors who are actually
p<~rl of the decision making process in the eyes of tlw public pctTc'plion.
<tncl the court assessors that is a mere advisor in the eyes of the IAtW HS it
l':-l.

1.5 Objectives of the study

1.5.1 General objective.

The general objective of the study was to analyze the role of court
assessors in the administration of justice in Uganda, a case study of the
cTiminal Division of the High court of Uganda.

1.5.2 Specific Objectives

The specific objectives of the study were as listed below,

1. To evaluate the efficiency of the Law on court assessors in Uganda.

11 To find out the competence of assessors opiniotts in tlw judicial

system.

u1. To establish the impact of assessors in the administration of justice".

11. To find out whether the use of court assessors is still relevant m
Uganda.

9
 1.6 Scope of the study

1.6.1 Content scope.

The study was about examination of Justice as delivet-cd by and through

court assessors in the areas of fairness, benevolence and equity. The
researcher intended to try and examine whether the Public views court
assessors as unbiased, fair, impartial and do reflect procedural fairness in
the administration of Justice. The researcher further hoped to, b\ the end
of the study make a significant appreciation pertaining the l<m· on
assessors.

1.7.2 Time scope

The study covered the era of the post 1995 Ugandan constitution in order
tu capture current and past data regarding the role of assessors in the
administration of justice.

1. 7.3 Significance of the study

The study helped the researcher and court assessors to appreciate how to
cklivcr better in terms of their roles and significances as friends of court.
It helped the researcher to acqwre more knowledge c1bout Procedural
l;u mess and the justice of outcomes as a growmg branch of soc·ial
s,·icntific research and skills of doing research.

The study would also help to harness work relationship between assessors
;md presiding judges since Lay assessors are typicallY concerned ;tbout
, JLISI verdicts. The researcher hopes that the study will h('lp the ,Juclicim·\·
in <llld Court System on how to better appreciate the need for rcl'orm on
the law relating to Court assessors.

10
1. 7.4 Conclusion.

In comprehending all that is said and done, chapter in purpose examines

tlic historical and reasons as to why the study is justified. It informs the
whole purpose of this research paper and shows whv this research is
W<Jrmnted. The researcher herein gives abroad insight into the topic and
,;hows why despite any existing academia articles tlwn- is a Jucunn he
in Lends to address by the subject paper.

11
 CHAPTER TWO

Literature Review

2.1 Introduction

This chapter presents existing literature on the role of ,·ourt <ctsst·ssors 111

tile administration of justice in the criminal division of the High court 111

Uganda. It gives the writings of other writers on the subject by

ucknowledging the same comparatively and analytically. The author by
this discussion identifies the existing gaps especiallv in the Ug;mc!an
. lu risprudence where the subject has not been so much n·sc<t rdwcl.

2.2 Impact of assessors in the administration of justice.

According to Douglas Brown 16 an Assessor iri law is a person who is

uppointed to advise the judge. fn Uganda, there arc "' \l't no dctuilccl
rult:s on how the court should conduct its proceedings with assessors,
though this is something that should be put under active consideration. ln
the present context, the role an assessor plays will depend very much on
I he: dispute at hand, and more precisely, on the assisl<lll<'t' that tlw judgt·
rJ,·sm:s. (2 .J. Afr. L.5(1958) 17 notes that After the suintning up if' dtl\ tlw
,Judge shall require each of the assessors to state their opinion but n need
not be unanimous.

Menon S contends that an expert assessor in an\' jut·isdiction should

vx1wct to find him playing the role of a scientific adviser''. Itt short, he/she
C~s;;isls the judge to come to grips with material that is h•·.\·ond his usual
wnge of expertise. Evolving paradigms for Expert witne>sses in cases like

- 1'' Criminal procedure in Uganda and Kenya at Page 137.

( >ptnions of Assessors in Criminal Trials in East Africa as to Native Custon1
'\V"shington vR (!954) 51 E.A.C.A.

12
.rvlvdical and Engineering fields where Judges have lirnitl·d 1\:nowledge, an
o;pen assessor occupies a special position in the judicictl process, there
are two house rules as far as the laVl'Yers are concerned.

Dwyer D in The judicial assessment of expert evidenc<' '''notes tiwt the

ussessor is not an expert witness and is not offered fo1· examination by
either party and for this reason, he should not be giving evidence but
merely helping the judge understand the evidence bt-·ing givenl". Per
Viscount Simon LC (with whom the other Law Lords agn·t·dJllSecond, the
;Jssessor renders advice that is likely to affect the judge's decisiun even il
he does not have decision-making powers. In the same case it was further
noted that the parties should know what he has told tlw judge cmcl be
given a chance to respond to it.

2.3Effectiveness of Assessors.

A study by Tyler, Lind and Huohas observed the situation of lay assessors
and their effectiveness 2 2. After analyzing their correlations, the fined
lll<':t-.;urc' WcJS formed by a number of reasons as expound,·d to ill': In order
lor the courts to function, lay assessors should follow tl1l' Presiding judge's
opinion without question, that there are few qualities more admirable in a
lay assessor than dedication and loyalty to his/her court and that If lay
11Ssessors trust professional judges completely, th\' ,·nun will bt' most

Iu Lhe early studies of John Thibaut and Laurens another aspect was
stressed and that is the aspect of voice which is to the effect that persons

,.,The JUdicial assessment of expert evidence. CAP. 2008:268

tl<l\'hardson v Redpath Brown & Co Ltd J!944J AC 62 ("Richardson") ;II 70 ; I
'J: Lord Woolf Access to Justice: Final Report (19961 at para 59.)
·("Warson") at !66J per Stanley Burton J; Colin Tapper Cross and Tapper on Evidence (OUP 12th
J·:d 20 I OJ at p 83.

13
should have the capacity and opportunity to present their case and be
heard.

Jcarey, J. (1960) in the African Journal contends that it was clear that an
<Js>wssor in English courts was an expert witness, in Africa the time-
honored English convention became an entirely new institution, which
ddied easy definition or classification, even by colonial oiTicials ;md legal
e:-:p,,rts. A. N. Allott, a leading legal scholar of the lut<' c·ololli;d period,
"rgued that the 'native assessor' in Africa was unique because he had both
the duty to assess (like jurors) and the duty to give advice (like expert
witnesses):

(-'\!lot t p. 250) reasons that the functions of assessors c;m bL· collected
under two heads - their duty to assess and their dut\· to advice. fn the
light of their special knowledge of Ugandan habits, customs and modes of
thought and language, they are peculiarly qualified to judge the pro!Jubility
of a story told by a witness, and they may detect in his dt·nwnnur ll'h;;t
JJ~<l\ escape the presiding judge. ln this role the asscss()t·'s task is simil;tr
L<l tha l of a juror's though he gives no verdict, but only his opinion on the
evidence. Secondly, the assessor's duty is to advise the judge or rmtgistrate
un matters of which they have special knowledge, and to ~ive tlwir vit·w. in
ill,· abstract, of what the custom or law IS m lh<· circumsl<~nces

il"sl ulated. The assessor though serving as an expert witness is not,

therefore, an expert witness in the ordinary sense. 2 3

2.4 Competence of assessors in the administration of justice.

[ !t:ikki has noted that from compurgators to mixed couns: reflections on

the historical developments of Finnish evidence law ancl coun structure

'lJ\Jlot.t, ·Judicial ascertainment', p. 250

14
notes that in the system of mixed courts, the Judge with legal training had
three: assessors. He notes further that before the refonn, thev were seven
il ,;sc·ssors a panel of which had to be unanimous to overrule 1he legally
tntined chairman. To them the lay assessor took part in deciding2·'-

Therefore the assessor's role is a highly complete one and givc·n the
concerns already raised within this text, many are the liwtors which c·ould
impinge upon performance of the assessor and upon the quality of the
evaluation process.

Woodrow Borah25 notes that concomitant with the chn11gc in the role of
tile ussessor came in that of crown Attorneys. In the I /'tit Ccntun· thev
rendered opinion when called on as protectors of the Indians or when
there was a crown interest somehow involved.

r\dinkrah21\ Trial by judge and assessors was origimdh introduced b<·causc

tlJ<· British Government had thought that trial by jurv ·would not doing
inter racial cases' and, in the present Government's view, the same
considerations still applied.

Til;Lddcus B Rada27a]so notes that in the first years of court uncit'r Luis de
\·t·L,sco II, the assessor acted as a legal advisor to the ,j,·,To\, 11llll s;ll in
tile nuclience and gave orders for the appropriate clenccs in uccordunce
with his advice.

·"' l!e1kki Pihlajamaki(200 1 / 1Vol. 72)

·''Justice by Insurance. The general Indian court of Colonial Mexico 1998
,, Crime, Deviance and Delinquency, Appendix 14.
'·h~ada, Thaddeus. ''The Role of Accountability and Compensation 111 ·\ssessor DtTision·/\Hl
Neg!f'ct." Electronic Thesis or Dissertation. Bowling Green State Unn·<'rsily. 1013. Ohiolink
Ut~ct ronic Theses and Dissertations Center. 08 Nov 2018.

15
Dickev A. 28 notes that the British colonial legal culture dii"i"ered in vanous
p.;ns of Africa, and varied social and political circumsUJnces meant that
criminal procedures in each jurisdiction reflected distinctive local concerns
e1hout administrative control and the maintenance of social order.
Hl)wt·vn, the doctrine of precedent in English common law, IJ\· ,,·hich
courts are bound (within prescribed limits) by prior decisions or superior
<'nuns, ensured that judicial decisions m one colony could inlluence
decisions in another part of the empire.

This was evident in the case of Rex v. Ndembera·"', i11 which coun
1"<.'\'<Tsed the conviction of a Ugandan for murder, on the grounds that the
original trial judge in the High Court of Uganda should not have convicted
t.he accused based solely on the uncontested opm10n or na Live assessors.
Ll<'\"ond the role of assessors in criminal trials, tlw .i uclgnwn 1 ;liso
i!ddn.·ssed important questions concernmg paLriarcilul inllucnccs and
;~cmlcr biases in the opinions of male assessors in trials involving \\"omen.
As several studies have shown, colonial courts were often sites or inlt'nse
gender and generational struggles over the interpretut ion of customary

!Cruncis J. Ayume30 has argued that the Ndembera case provides a clear
cx<imple not only of how these gender and generationul struggles played
out before colonial courts, but also of how Ugandans in tlw lower ranks or
, lli<>nial buree1ucracy shaped these processes. It raisc-·cl questions <!bout
1 ill' dominance of male perspectives in the testimonic·s or Ugundan
assessors and the resulting implications for the rights or women in trials.
The 'facts' of this case, as presented at trial, were that the accused \\·as

'" Dwkt·y /\.The province and function of assessors in English court. Mod I. !\'(·\·. I ()70::U.
·-, l~ex v.Ndembera East African Court of Appeal (EACA) in 1947 ·
Cnminal Procedure and Law in Uganda Francis J. Ayume Longman Kc:nyc.\ Lirnited, l Jan I 0H6.

16
 luund eloping with another man's wife. Thereupon, an uncle of the
woman's husband attempted to 'arrest' the accused and prevent him from
lem·ing with the woman. In the struggle that ensued, the accused killed
1he uncle with his spear. During the original trial, the muin issu~ IJdorc
tht: court was whether, under local custom, the dececlsccl uncle of the

\\oman's husband was entitled to arrest the accused while the latter was
eloping with his nephew's wife.

'1'11<1 male assessors stated their opinion that, according to native custom,
the deceased was fully justified in attempting to restrain and arrest the
accused. They stated that male family members such as brothers, uncles,
and nephews had a customary right to prevent a relative's wife from
,~loping. This custom, they opined, was based on tlw tJotion !hal, 111

m~tJTiage, a woman became attached not only to her husband but also to
her husband's extended family. However, contradicting this opinion, Lhe
'woman in question' gave the following evidence: 'our custom about divorce
;,, lh<ll a woman will run away with a man and tlwn !he husband \\'ill
d!\<ti'!T her ... ! did not seek my husband's consent to" d!\<l!T!'. It is tl!ll in
nur custom to do so. I could please myself. I did not tll.'<'d my husb:md's
consent'. This testimony, coming from the woman at the centre of the case,
; suggesting that she was not simply eloping with the accused but was in
ill< process of divorcing her husband, would clearly· h<Jit' rnitigatl'll the
sc.·l'cTi ty of any sentence passed on the accused.

However, disregarding the evidence of the woman and upholding the

opinion of the male assessors on the applicable native custom, the original
t ri<li judge convicted the accused of murder.

( >11c or the grounds for rejecting the evidence of tlw 11oman ll'<ts the
<~ssumption that her views were more likely to be 'a progressive \\'oman's

17
conception of what a woman's right ought to be' rather than the proper
nutive custom on divorce.

This judgment was typical of the attitudes of colonial courts toward the
<'l·idence of Ugandan women, particularly on matters relating to marriage
and divorce. There was a constant questioning of the identities and status
of women, most persistently over the issue of whose wife a woman was.
C"n1plicating this, as in the Ndembera case, were questions over whose
\life a woman was at a particular time, amid contested interpretations of
customary law.

Colin Tapper Cross31 discusses role of colonialism in both the production

""" ;unplification of gender differentiation. He advances un urgument that
ill<.: colonial rule in Africa was essentially a male project. <Ill undertaking in
which European men employed and collaborated with Ugandan men, as
\\'t"ll as confronting them.

t•p"n ;lppeal at the EACA, the Ndembera case focu,.wd on t\\·o nwin
<nH'stinns, of which the first was whether the original trial judge had
erred by making a judgment adverse to the appellant based solely on
the opinion of assessors, which the accused had no opportunity to
challenge or rebut. On this, the Court of Appeal notc·cl \lith dtSilllProval
tltilt no evidence of the custom that the accused II'<~'> <lllcgcd L<J have
'ontravened was tendered during the original trial. The second, and
perhaps more crucial, question was how to resolve the seeming
contradiction between the opinion of the assessors and the evidence
of the 'woman in question' as to the local custom on divorce. Unlike
til,· uriginal trial judge, the judges of the EACA were rclul'tant simply to

,;lr·Watson") at [66] per Stanley Burton J; Colin Tapper Cross and Tappr?r 011 PflldPilCP (OUP I lth J·:d
!litO! at p 83

18
accept the op1n10n of two court-appointed male assessors over the
n ide nee of the woman at the centre of the case. These European men
·'<·c·mecl acutely aware of the possibility of patriarchal <lilcl generDlional
!Jiaset> in the opinions of male African assessors. They were also aware
tltHi t>uch gender biases, on the part of both Uganclun Hssessors and
L·;uropecm judges, could subvert much-vaunted ideals ol' Uritish .JUstin· in
the colonies. Commenting on the dismissive attitude ol the originul triul
.JUdge toward the evidence of the woman, the judges of the EACA st.H ted:

Ji I his [woman's evidence) is to be regarded merely ns n progressive

u•oman 's conception of what a woman's right ought to !Je. it is surJJrising
I hut it elicited 110 re-examination and 110 question by either assessor. It may
well be that the trial Judge who has had a long African experience, was
/1imsel[ conversant with the native custom on the point, but iF that li'OS the
'"·''"· u•e respectfully suggest that it would havP /w, 'II lwfl<'r l1nrl he
<~l!i·'IIIJ!ted to elicit evidence of it by questioning either l\lusl1o fthe u•mnun in
li1<· crJSej or her husband who was also a prosecution witness. Hwl such
evidence been forthcoming, whether pro or contra, or both, I he opinion of the
<issessors would have been pertinent and could rightly houe iJPPn acted
··!"!!' iJy the leamed trial Judge. As it is, we feel /JUu111l 10 leuue uut of'
, 1ccuwll this part of the judgment ancl treat this case as ij I he deceased had
ilO business to interfere with the person of the appellant by physical)orce.

The EACA accordingly altered the conviction of the appellant from murder
,,, 1111/llslaughter, guided by the Privy Council's ruling 111 the Uh;tl:iillllli
, ·""'· delivered five years earlier, that the role of assessors in trials
involving natives could not simply be seen from the point of view of
aid given to the trial judge. The institution of assessors was also
intended as a safeguard to natives accused of crimes, and to

19
guarantee that the courts properly understood and applied their
customs. Achieving this objective meant that accused natives had to be
given ample opportunity to challenge the opinions of court-appointed
nssessors on native customs, particularly in trials for capital offences. in
1 lw Ndembera case, the EACA was particularly critical of the dismissive
;tpproach of the lower court towards evidence on nCitive customs that
,·"nlradicted that of the court-appointed assessors. Tlw court noted that
such an uncritical approach to the use of native assessors threatened to

prevent 'an alien court doing justice through ignorance L''

2.5 Mini- Conclusion.

The ostensible object of using assessors was, in. the words of one judge, to
·guarantee to the native population that their own customs and habits of
!1!', <liT not misunderstood'33 In fact, the use of natin· <tssessors in the
courts was equally driven by administrative expediencv. Assessors were
crucial to British 'pacification' agendas and to guaranteeing social order.
The aim of the system was both practical and moral. it wns practic;J! in the
S<'tlse that European judges often could not understimd 1 !J,· langLI<Ig<· nne!
,·us!Oms of people in the dock, and moral in terms ol iq.>;iLtrnizing ·nftcn'
,·uurts in the eyes of the colonized34.

'•J•:ast i\frican Court of Appeal (EACA) in 194 7

",Judgment in the case ofMahlikilili Dhalamini and ors v. R, [1942[ Appeal Cases 583, pp. 589ff.
(Ilf'nceforth, Dhalamini v. R). For this case, see Joseph Jaconelli, Opf'n justic(~: a critique of !he
J H ~~ J!it ,

( !>.fonl Oxford University Press, 2002, pp. 104-5.

\; 1.. :\. 1\. Kyando and C. M. Peter, 'Lay people in the administration of criminal justice: the l<-1\\' and
pr:wtice in Tanzania',African Journal of International and Comparative Um . .S, I 993, p. /)6l)

20
 CHAPTER THREE

Legal Framework

3.1 Introduction

'l'hc·rc are several statutes that govern assessors in Uganda which include
The Constitution of the Republic of Uganda 1995, The 1ha/ on Indictments
Act, The Evidence Act, The criminal Procedure code Act cap I I 6, and other
o->ul>sidiary legislations, case law and international regulations on personal
liberty as stated below;

3.2 The Constitution of Uganda 1995 as Amended.

TIIc Constitution of the Republic of Uganda, 1995 is the lc·gal tlOrrll 11 ilnc
all other laws in Uganda derive their legality from. The Provisions or the
Constitution contains binding provisions on Uganda and the state must
ob,;crve the same. It has elaborated provisions regarding <Jdministration of
justice. In the National Objectives and Directive Principlc·s of Stat<· Policv,
11 i1Ic'i1 are binding on Uganda by virtue of Artie: I<' S-;i\, requir<'s the
( ;ovcrnment of Uganda to take measures to ensure that substantive
justice is delivered for and on behalf of the people of Uganda.

The national objectives of state policy provide that the St;,Jc· sh;lil 1J<' b;Jscd
o11 democratic principles which empower and cncotlr.tg<' th<' ;Jctil'l'
p;nticipation of all citizens at all levels in their own govcrrulncc.

Objective no III provides for National unity and stability Subsection (i)
stutcs that all organs of State and people of Ugand<i sh;;ll wmk lmnlrcls
1!w promotion of national unity, peace and stabi.lity.(ii) l•:nT\ cllur1 sh;dl be
'''<l<k to integrate all the peoples of Uganda while at the same lime
recognizing the existence of their ethnic, religious, ideological, political and

21
cultural diversity.(iii) Everything shall be done to promote a culture of
cooperation, understanding, appreciation, tolerance and respec\ for each
uther's customs, traditions and beliefs.(iv) There shall be t>stablislwd and
nurtured institutions and procedures for the resolution <)f con11icts rairlv
and peacefully.

Obj<ective V provides for Fundamental and other hume~n rights <~nd

lrc·edoms.(i) The State shall guarantee and respect institutions \\·hich me

charged by the State with responsibility for protecting and promoting
human rights by providing them with adequate resources to function
effectively.

Tl1c Constitution of the Republic of Uganda 1995 ciS /\mended under

Article 17 provides for the duties of a citizen which among others is the
clutv to cooperate with lawful agencies in the maintenance of law and
order and for performance of other such duties as parliament may by law

Jtl On fair hearing provides that there shall be a fair, speedy· and public
hearing and Right to just and fair treatment in administrative decisions .

.1\rticlc 42 provides that any person appearing before dil\ aclmimstratiVL

<>llicial or body has a right to be treated justly and fair!\ unci shnll have a
r1ght to apply to a court of law in respect of any administrative decision
tdken against him or her.

/\nick 126 2(e) on the prem1se that substantive .Ju,lil'<' should be

udministered without undue regard to technicalities.

22
3.3 The Trial on Indictments Act Cap 23.

!11 its long title states that it's an Act to consolidate the bl\1 relating to the
1 rial of criminal cases and for matters connected or incidental thereto.

Section 3 of the Trial on Indictments Act provides that except as provided

bv anv other written law, all trials before the High court must be ll'ith the·
uid of assessors, whose number must be two or more.

Section 3(3) gives power to the minister responsible in consultation with

the chief Justice to amend the Assessors Rules except rul<·s .2 and CJ.

Section 67 of the TIA, assessors must be sworn in at tlw c<nnmenn·rn,·nt

uf the trial but after the preliminary hearings and after the accused has
pleaded to the indictment. The section provides that such an assessor
shall take an oath to impartially advise court to the best of his or her,
J.:nm,·Jcclgc, skill and ability on the issues pending in collrl.

According to section 68, before assessors are sworn the <Kc:uscd and or his
advocate and the advocate for the prosecution have the right to challenge
1 he propriety of the choice of a particular assessor. They can clo su on the
f >I lu\\ illg grounds;

u) Presumed or actual partiality- an assessor who goes to court with a pre

conceived idea as to what the judgment of the court should be even before
hearing the evidence is not what is required or expected of an assessor or
,, " c~sscssor who has an interest in the case

]J) Personal cause such as infancy, old age, deafness, blindness or

infirmity.

23
 <') His or her character in that he or she has been convictt·d of an o/Tt>nc·e,

\\ hich in the opinion of the judged renders him unfit to st>rve m; an

dSSCSSOL

cl) His or her inability adequately to understand the language oft he court

t\ecmding to section 68 (2) TIA, when a challenge is disputed, it becomes a

1riable issue and the person challenged may be· examined by the court as
to the allegations about his incompetence. See case of Ndirangu s/ o
Nyagu v R [1959] EA 875.

'i\ccorcling to section 69 of the TIA, if in the course of the tt·ial and lJcfurc
\'<'rdicl an assessor is from sufficient cause un able to at tend throughout
tllt' trial or absents himself, and it is not practicable immcdintcl_y to
<·nfon'e his attendance, the trial shall proceed with th< :tiel of tiH· nthcr
1· ; 1;-..,'";( "-;sors.

/\ccording to section 69(2) TIA, if more than one of the assessors arc
prevented from attending or absent themselves, then the procccclings shall
IJL' stayed and a new trial shall be held with the aid of diffen·nt assessors.

:-; lt l also make::; it a requirement for assessors to attend adjourned

hve~rings and any subsequent sitting until the conclu::;ion of the tried.

Sc:ction 88 provides for Assessors and confession. The section inter alia
1.;"\ ides Lh8l the assessor shall not be required lo kn\<' c·ourt whik the
"'SLit' of admissibility of a confession is being tried. Til<' scTtion ho\\'cvcr
adds that the decision on any such fact or question of law shall be for the
judge alone to determine.

Thc· ussessors' selection, qualification 8nd 8ltendancc iln· governed IJ\ the
ctsscssors rules set out in the schedule to the Trial on Indictment Act.

24
U mkr the schedule, every chief magistrate is required to prepare, before
tlle first day of the month of March in each year, a list of persons in his
magisterial area who qualify to serve as assessors. Rule 1 of the assessors'
rules.

llw list of assessors must be posted at the at the cour·t house for
inspection by the public and any person who wishes to object to a
pnrticular person being included on the list of assessors ma,· do so.
1-<ul<~~( 1). Any such objection is heard and deterrni twd by tlw <'h i<"f
mngistrate or a magistrate grade l of the area.

Alter the hearing of the objections about a person's suiwbility to serve as

<~ll assessor, the chief magistrate will amend the list unci strike out the
Jwmc of the person not suitable, in his judgment to sen,. c1s an 11sscssor.

1-iule 4(1). A copy of the list so revised shall then be sent to th,~ chief
n·gistrar. Rule 4(2). The list so prepared shall be again revised once m
,.,ny year and if any person suitable to serve as an assessor is found 111

:til\ magisterial area after the list has been settled, her 11<.111<' will lw ;~rldecl

t•> tile list by the chief magistrate of the area. l'<ule 4 (4).

1\ll citizens in Uganda who are not exempted and who area betv:ccn the
ages of 21 and 60 and who are able to understand the language of the
, ''lll't with a degree of proficiency sufficient to be ,~IJJ,· t\l i'ollow the
pron:cdings shall be liable to serve as assessors at any tnul held bcfon· the
high court. Rule 2 (1).

• Must be a citizen of Uganda

• Ret wee-n the age-s of 21 and fiO
Must understand the language of the court- English

25
l~ule 2 (2) makes provision for persons exempted from liability to serve as
assessors.
Persons actively discharging the duties of priests or ministers of
1heir respective religions
Medical practitioners, dentists and pharmacists in uctive practice
Legal practitioners in active practice
Members of the armed forces on full pay (it is not clear wh\ these
categories of people are exempted from serving, perhaps as ti1L'sc arc
professions or callings which require active and full attention, it
might not be easy for those concerned to perform fullv their duties
as assessors which frequently involve long sittings, without causing
serious disruptions in their normal duties)
• Members of the police forces or of the prison services
Persons exempted from personal appearance in court under the
provisions of any written law for the time being in force, relating to
civil procedure- diplomats, president.
Persons disabled by mental or bodily infirmity (these arc exempted
for obvious reasons- an assessor must be able w understand and
follow the proceedings and must also be able to stand for long hours
Persons exempted from serving by statutory ins! n.tnwnt rn<l(l<' ll\' th('
minister challenging the appointment of an ass('SS<lr.
,\t the end of the evidence for both the prosecution and the clcfcncc, the
judge will be required to sum up the law and the evidence in the case to
the assessors and shall require each of the assessors to state his or her
"JlllJion orally and shall record each such opiniol1. S. Kl( I J TIA.

1\s far as summing up to the assessors is concerned, it should be done in

simple language. In the case of Godfrey Tinkamalirwa and another v

26
Uganda, it was stated that some of the matters which the judge should
dir<"<'t the assessors on are;

"1 The contradictions and inconsistencies in the evidence

b) The weight to be given to certain pieces of evidence e.g. evidence of a

hostile witness

r) When court may base a conviction on identification b\· n single witness

ell When court may rely on circumstantial evidence, etc.l-"

Uganda v Semanda 36 In this case the Judge noted that the role of
ussessors in criminal trials before the High Court of Ug<tnda is th;tt they
<In: .Judges of fact. He went ahead to state that law on <ctssessors is to
rll<tkc opinions on any fact relevant to the issues in the case. But the
ckcision on any question of fact and the law shall be dc·;tlt with h\ the Trial
. /,~t.lge ;tlone. The judge therefore, ruled that he WC\S 110t bound hv the
<tel vice of the two gentlemen assessors.

111 the CC\se of Uganda v Charles Kangameito unreported, it \\'its stated

1 hut it is improper for assessors to form th<eir opinions bcfon· IH:rtring
,.,,unscl's submissions and the summing up.

Altn summing up, the judge will request each assessor to give her opinion
orally and then the judge will record such opinion. 8.82 TIA. The assessors
m:l\ r<'lire to consider their opinions after summing up illld if I he\· so \\·ish
<Ill<! during such retirement, they may consult with 0111' :ttwlhn. S.l-\2 (4)
T 1.'\.

~-> Charles Kayumba v Uganda unreported

"' i/1\(;\\ COUI<T CRIMINAL SESSION CASE NO: II I OF 2013)[20 \6] lJ( ;ll('l' "I l I ,1() tl2 .·\prl!
. ,( ) II )].

27
 It should be pointed out that the assessors' opinions <Jn· not binding on
1lw judge but where the judge doesn't conform to t ht· opinions or the
rn<Iiority of assessors, she shall state her reasons lrn· departing from
departing from their opinions in her judgment. S. 82(3) TlA.

Under rule 1 of the Assessor's Rules under the TIA the cilit-f magistmte 1s
,-,-·qui red to carry out appointments annually in every monr h or March. And
undn rule 3.in case the personality of an assessor has lx·<·n attacked then
rr is the chief magistrate or the magistrate grade OJJ<' n the area to
<'lltnU1in the matter during the appointments. And nccnrcling to ruk 4 ol·
rlw assessors' rules the chief magistrate is empowered to rnal-:e furl her
nppointments during the year and forward such names to he considered or
taken has assessors.

l'nckr section 82 .4 the assessors have right to retire first ancl go <mel
,.,l!Jr'irll each other before giving their evidence ancl diso unckr section
(-;.2.3. The judge has to give a reason for not taking the assessor's opinions.

3.4 The Evidence Act Cap 6.

;, ,;; ·1f The E.A Cap 6 provides for the power ol '"'scss<Jrs I<> put
qtJc•stions. The section gives proviso for the fact that i11 cases tried with
us:ocssors, assessors may put any questions to the witness, through or by
leave of the Judge, which the Judge himself or herself might put and
11 h ich he or she considers proper.

3.5 Mini- Conclusion.

!11 conclusion Uganda has various legislations that make provJSJOll !"or the
usc of court assessors. The use of court assessors on close examination of
tiw statutory provisions above is premised on the delll<HT<IIIC.' pri1wiplcs of

28
!"'"ilk participatory governance and the right to a fair !waring th<Jt the
JllilJ!it· takes part in such a hearing. The 1995 conslitution <tncl the
antecedent legislations thereto all make provisions for !he role of court
:tssessors in the administration of justice either direclly or bv implicut ion.

29
 CHAPTER FOUR

Research Methodology, Presentation and Analysis of the Findings on

the objectives.

4.1 Introduction

This chapter looked at research methodology, data presentation. analysis

dttd interpretation of the findings on "the role of court 'tsscssors in the
ctdministration of justice in Uganda" The data analyzed under this chapter
is itl accordance to the library research, online research. questionnaires
nnd journals reviewed. The presentation was guided by the following
rc·scarch objectives; to evaluate the efficiency of t lw Lnw on court
""'"·ssurs 111 Uganda, to find out the competence of ass<'ssors opini<lllS in
the judicial system, to establish the impact of assessors m tht>
;JdminJstration of justice and to find out whether the use of court
i!Sscssors is still relevant in Uganda .

• 4.1 Research Methodology

1
'·
' 4.1.1 Introduction

This section gives clear information on how data \Uts collectcc! and
.!IJ,,I\·%cc! for the study. It therefore, focuses on the natun und p<llttTn of
tlw !Tscarch design the methodology that was used is: library, internet
.,,·;Jrl'hcs, research design, and sampling procedure, the methods and
instruments of data collection that the researcher used arc discussed.

4.2.2 Research design

,\ d<'scriplive case study design was used during the stud1. The re<JSil!l as
10 why a descriptive study was used is that it assisted in describing a

30
 single problem as it represented other wider problems. It involved only
do<'l rinal method of data collection. Doctrinal method ,·mphasi:cnl 1he
11\ifH>rtance of looking at the available Literature in tlw <IIT<l of n·sc·<~rch. It
":ts important since the researcher accessed the existing g<tps and drew a
c·onclusion thereafter with formidable recommendations on how the law
,·:m be amended to provide for better operation of the Assessors. Cktailecl
d ll:J was gathered through reading Journals and revising <'lls<es :mel other
'.\J:,I mg legal scholarly materials. Furthermore, it is .1rgucd that such
Instruments assisted in capturing quality information lx·ceJuse it was
\\rittcn. Forms of the data collection included online and library n·st·mch.

4.2.3 Area of study

rJ'iJ,· study focused on Criminal Division of the High Court system by

dosely looking at and discussing the different court decisions and how
·tilc·se specifically in the use of assessors in the crimin:d Uivisioti of the
·I !iglt court of Uganda. The history of Court assessors in Ug:u1clu is <~sole!

us 1 he Ugandan Judicial system way back with the 1902 order in Council
·"hose Clause 15 (the reception clause) operationalizerl :tnd domestic<ttecl
1itc u;;e of all English, the statues of General Application in Engl<tild. the

.<l<>< Innes or I:<:quity and Indian laws at the time being m i"n'c-' hns n·nli:cccl
:;tgnificanl growth since its inception with more projects.

4.2.4 Research instruments.

4.2.5 Documentary Study

Tiw researcher used various textbooks, references ..Journals, Pcports,

Nl'wspapers and legal scholarly relating to the research study. These
looked at the already existing data that had been published regarding the
,·,LI,·m of Ihe study.

31
4.2.6 Online Research.

Tlw researcher also reviewed the existing scholarly writll1gs on the subject
cd court assessors in other Jurisdictions to better appreciate the existing
loopholes in the Ugandan Jurisprudence on the same Area. This helped
1he researcher appreciate why despite being an old provtston Court
.\ssc·ssors are still of relevance in the Ugandan Jurisdict i<>tl.

4.2. 7 Data analysis.

Tiw researcher edited the information after being coii<Ti<'cl, and then the
'ollectecl data was summarized such that it became morT concise nnd
pn·,·isc to make it easier for analysis.

4.2.8 Research procedure

T!w r·<·sr•ar-chrr spent time in the Existing libraries in UgrttHiri like the 1\IU
I·" 11 Li !Jrary, Makerere Library and The Law Developnwn t ccnrcr 1o get
lwt tc'l' acquainted with the best existing material on the subject of
rvsenrch. The researcher also used internet sources like Google Scholar to
,c;c·t the most recent opinions and scholarly writings in tlw i\n.'tt of Ct!Url
:\ '-1S{ 'Ssors.

4.2.9 Limitations.

( Jm· of the main obstacles that this study faced is the demth of ucadcrnic
l:tn<itlltT ancl sources of reliable information ()l! :~"\'cnwnc·,· <~ncl

, ,,l,titutionalism in Uganda. Most of the documenwti"ii rci<lling to the

, ulunial era and to the period before 1995, are not available in Uganda
because they were destroyed during the various wars that the country has
<:'<j)('ri,·nced. The common source of the· histon <lf lJg;mcb ts
ittllci<nncntally oral. This has been handed down over gl'ncrations ami it IS

32
<>i'h'Jl distorted with tribal and religious bias. Howevn, there are H few
Ugundan academics who have engaged with issues pertaining to this
research and, therefore, their works have been frequenlly cited to support
11w nrguments that I make and to question some common ;1ssump1 ions. It
liLt\ ;dso be slated that there is a fear among Uganci<tt1S of c·rittc'i.<im.; tlw
n ilmg government because of the level of intolerance towurcls alternative
1 tc'l\ s. This made it difficult for this study to elicit the free opinions of
l rgandans which would have enhanced this study. For 1Jwsc n·usons, 1he
purview of this thesis has been limited to exploring " 1 Jw fc\1 J11'<Jii<1bic
J," :d sources supplemented by newspaper articles, web lllogs and the work
of international and regional academics for the purposes of sketching and
probing the conclusions made by this study.

Newspaper articles and website blogs have been usecl to the supplement
<Jutckmic literature. While these sources may nol [),o found lo be
:Juthoritntive, they have been drawn on in an attempt to highlight IJmh the
r< '11 Iit ies in Uganda and the opinions formed on the issues concJ:·rn in1.; 1his
r, svat-ch. In order to address the challenges posed b\ rIre slwn"gc of a
""·idv ol' sources, 1 relied extensively on opinions in t lw Nt·wspupns <lllci
,Journals where judges, lawyers, journalists, members of civil society and
11 it /J the academic community have written or been writi<'n about in orck:r
1o r·hallenge common perceptions and to supplcnwrtl t Jw <ll'lli !<J!Jie
111lr 1 m1a Lion.

4.2.10 Chapterization.

This report consists of the introductory chapter. tim·<' suhsl<~ntive

, li.<fli<'l·s ancl a concluding chapter. The contents ol <':~t·IJ eh:iJ>l<T 111"t'

tltscussed at the beginning of every chapter therefore, <>illy 1111 uuLiine or

1he issues dealt in this study is provided under this sect ion. Chapin one

33
rmn ides a background to this study and the problem statement and the
oLJjectives of the research. The main aim is to provide a comprt"!1ensive
j•I:Jtf"orm for a critical analysis of the legal construction or the institution of
"'-''Wssors in pre and post-independence Uganda. Stuning with pre-
' ,Joniul governance systems, the chapter traces the origins of the use of
;tsscssors injustice system of Uganda. It provides a histor\ of fundamenwl
l;m s that Uganda adopted before 1995. A discussion of the his tor) of
.tsscssors, the insight into how and why they were introdun·d.

c:lwpl.er two discusses the existing literature on the subject of use of court
;t:-,sc~ssors in the criminal division of the High court. Tlw tTsc·urcher
t·,·,isttcd the existing scholarly anicles and journals tilnet<; in ordn to in
ckpth idenli(y existence and come up with authori ta live in forma tiot: on the
,;u hwct matter.

l'hapter three discusses the existing legal framework as established under

tlw I L1g5 constitution as amended. Furthermore it c·,:pl;tins how 1 he

\ llttstitution, statutes and courts have defined the scopl' of <tssc·ssors'

r<'lc•vancy and their role in the criminal division of the High Court.

Chnptc-r four provides observations and findings of the stuclv.

I iw finul ch<tpler of this study provides rccommc·tvLtil()tts :tnd :t fin<tl

<· ·m·Jusion to the research proposal.

4.2 impact of assessors in the administration of justice .

.\ ''"uri ;tssessor is a lay person (not a lawyer) who is :tppointcd to sit 1n

,it HI listen to serious cases. At the end of the trial, he or she advises coun
'" c·ithcr acquit or convict the suspect(s) depending on his or her

34
 ;
'·
evuluation of the evidence presented in court. The court assessors' opinion
,,, '"'' IJinding on a judge.

i."' r;ssessors are int1uenced by the professional judges ;;nd arc pllSSive
during the trial. Normally, the presiding judge decides in advance which
lc1v assessor should read which testimony. Even if I<Iv nssessors he~ve n
d>l'icn·nt opinion about the case, professional judges Ill"\ lrv lo convince
ilwtJl wilh their own knowledge. This happens even when lay assessors are
:.1 majority on the paneL

.1\sscssors are analogous to expert witness and in principle the optmon of

<lll assessor is substantially on the same footing as the opmion evidence of
, ·'<pert witness·>7 Provision was made by the legislature for EunJpl'llll s to
,,dminister justice in foreign land. They were deficient in their knowledge
of tile customs and habits of the parties and witnesst"s llj)penring !Jclorc
:lwm They were also deficient in judging their denw<tllor in the 11 itm·ss
IJox. Having the benefit of the opinion of two or more respectable natives of
1lw land as assessors possessing such knowledge and judgment was the
princ·iple underlying the institution of assessors.

! 1,,. !unction of assessors appears, therefore, to be 1\\'oluld: the duty to

"';scss and give advice. In the first instance, they assess or weigh the
evidence as a whole and decide whether the accused is guilty or not in the
li,~hl of their special knowledge as to the habits, customs, mocks of
lltlltt~ill and language of the particular societv from \\[,,,·h tlw :wntst·cl
, "!IH'S. The reason being that assessors are peculiar!\ quttlilkcl 10 judge
tlw probability of the story told not only by a witness IJUL also IJy the

1- ,\c('oniing to the' Judiciary Staff Hand Book 6th Edition at Page :22
! i 11 v .r _l_,.__~f~Udici~ttY.go. ug.!files/ downloads /The ,Judician· l·iar1dbook,lH1 f. 1" 't'l 1 wn·d o! l .!()"
1 11 lo!wr .20! B.

35
·" nls,·d, and may detect m his/her demeanor \\'hlll lila\' tc'SU!pt: the
presiding judge. Secondly, assessors have the duty or mlvising the judge
<ill nwtters upon which they have special knowledge and give their view in
;~iJstracr of what the particular custom is in the circumslelnces under

ill <Ill article by the Weekly observer Newspaper Retrie\'t'ci on 2Yth ()ctober
.lUIS 3H where the Judges were attending the Uganda La\\ f-<t'ltlrm
Commission at Kabira Country Club, Judges and .Justices gave 1fwir
'I' fk-rent views on assessors.

•\nti·Corruption Court judge Lawrence Giduduthat assessors arc useless

!l1 his court because the evidence presented is often very technicol. The
evidence at our court is not ordinary because we deal with financial fraud,
.n·nunts, computerized fraud, some of it is digital. In Sll<'h cas<·'S \'()Ll rind
1 lwl actually they don't have any opinions to give.

i\ccorcling to Justice Stephen Musota, the assessors add no vnluc to

tTimin<ll trials. Uganda Law Reform Commission (ULRC) "' J\abira t·ountry
, i1!i> "n/\ugust 31 2015.

Tht· head of the Commercial court, Justice David Wangutusi, amused said
he has never considered the assessors' op1mons when writing his
_judgments."For the last 15 years I have not even reflcctC'CI on the opinion
·, ilt' .1sscssors give me when I'm making my judgmcnls ... Thl'\ <~I<' ol' no
cullsequcnce," he said39.

:~1 J! IJ"2S: I I observer. ug I news-headlines /39641-ludges-divided-on-assessor~:l_rh~vRnCf' ,Judges

d1vitkd on assessors' relevance Septembe-r 2, 2015 Wrirten by Derrick !\1\0ll!',,l on .!.nd Scpll'mlwr

· i 111 ps: [LoJgwn.:el:..:_1!g I news- head! ines /3Y64 l -j udgPs-rlJvJded -on -n sse~_:::;o1·s n ·!t '\'d n~'_<' . J u d;~t .. .,
rii\'Hkd on ~-tSSf'ssoJ·s' relevance September 1, 20!:1 Written by Derrick J..:l_\!J!l!--',<~ on .?n<l Scp't'lnhn
.)() I :)

36
 Itt supporl of the assessors, Henrietla Wolayo, the Sorott resident judge,
"aiel she finds assessors valuable in her court because they understand
the social and cultural dynamics of the area. "They ma:- not understand
11 w law or the facts of the case but they are import 11111. For ''"" m pi<', I
,j,,ll·l underswnd Soroti the way they understand it so I gel information
.ti>out the place from them,"

.Justice Remmy Kasule of the Court of Appeal said it would be wrong to

ditch assessors because they represent ordinan· pt'oplc 111 c·oun
!''.'"'et·•dings. "We judges administer the law in conformil\' ,,.i1h 1lw \'<dues
"1 "I 1wnns of the society and these assessors represent tl tc vie\\·s of a lay
,,,.,·son {society)," he said. "Personally, when I was still a lligh court judge,
1!w ussessors' opinions used to help me a lot when writing IT!\' juclgnwnts,"
ilt· s;;icl .

. lttstice Kasule also was of the opnuon that instead of kicking out the
.tsscssors, the judiciary should address itself to the tssuc of which type of
pc:opk should be hired to assess cases.

Tlw Learned Justice Kasule added that the Juclici<~rv shottld hire
ussl·ssors with skills, not people who just come to sit and sleep during
1m" -ccdings.

\,. •>l'lilllg to an article Published in the New Vision on J.\rd .l;tntl!ll'\ JlJU-'1
rei ricvcd on 29th October 4° by a one Mary Twanza the provision for gil'ing
the judge assistance of assessors in most cases is a liability other than an
;tssct at the close of every case. The judge is at pains tc, sum1narizc the
,, li<.J<· <·vidence of the assessors as if they were not listc·ning during the

·"jl! ws: I /v,:ww.newvision.co. ug/new vision /news/ 1108379 /assessors-courts 20 l8on vv-edn('sday
Ma.v 24 2017

37
 1 r·ral. In her view, the powerful examination and submissions of both state
nnd defence counsel are enough for a judge to legally weight the scale and
t<' ~i1 ,. il final verdict without any interference whatsoe1 ,.,-.

1\<Torcling to an article in the Daily Monitor by Anthon\ Wesaka 11 Court

ilssessors are non-lawyers who sit together with a judge and at the end of
the trial give their lay man's opinion on whether to convict or acquit the
·" ,·usc·d after evaluating the evidence adduced in court 1J1· the prosecution.
r lm1 <'vtT an assessor's opinion in a case is not binding llt1 the judge who
tlld) agree with it or depart from it.

4.3 Relevancy of court assessors.

:\1-,scssors' role was found out to be advisory m relation to custom and

< 1 tl t ure. British colonial legal culture differed m vanou s parts of Africa,
:llld varied social and political circumstances meant that. criminal
pmccdures in each jurisdiction reflected distinctive locli concerns uiJOut
.rdlllmistrativc control and the maintenance of social cmln. HOII'<'V<'J', thc
ti<ll'trinc of precedent in English common law, by which courts 11rc bound
{wllhin prescribed limits) by prior decisions of superior courts, ensured
1lwt. judicial decisions in one colony could influence decisions in <.mother
p;,rl of the empire. This was manifest in the case of Rex v. Ndemberau, in
11·hich a decision was reversed the conviction of an Afric:rn for murder, on
1he grounds that the original trial judge in the High Court of Uganda
should not have convicted the accused based solely on the uncoJJtestcd
'pinioll of native assessors. Beyond the role of asses!'ors i11 <TJJllin<tl tri;tls,
ttw Jlldgment also addressed important questions Clltl<'<'Itltttg p<tlrt;JJTIJ<t!

'I LL!J.rr;./ I www. monitor.co. ug/ News /National/ Court-fails--trace-assessors--Lria_l- suspected -sf' riaL:
h_illrrj688334-3939134-13vmjpgz!index.h tml retrieved on 29th October 20 l H.
· · l·!nsl i\frican Court of Appeal (EACA) in !947

38
inlluences and gender biases m the opmwns of mak assessors in trials
'"'"!' rng women. As several studies have shown, u>ionrul court,.; 11crt·
.. :rc·n sites of intense gender and generational stru~;gles <JVtT the
interpretation of customary law.

The Ndembera case provides a clear example not only of how these gender
urHl generational struggles played out before colonial r·r>rrrts. IJrrl ;rlso of
iH>II f\fricans in the lower ranks of colonial bureaucr<W\ shaped these
processes. It raised questions about the dominance of male perspectives in
the testimonies of African assessors and the resulting implications i(>r the
r·il(hl s of women in trials.

Tlw 'facts' of this case, as presented at trial, were thut the accused w;rs
J(nmd eloping with another man's wife. Thereupon. nn uncle of the
11ornan's husband attempted to 'arrest' the accused and pn·vent him from
lr ming with t.he woman. In the struggle that ensued, tile· uccusc·d kilkcl
1 he· uncle with his spear. During the original trial, the m<rin issue lxfnre
the court was whether, under local custom, the deceased uncle of the
<~<rm;m's husband was entitled to arrest the accused whik the /;ntcr was
' i•Jfllllg .,, ith his nephew's wife.

Tw<J male assessors stated their opinion that, according I<J native ('Usrorn,
the deceased was fully justified in attempting to restrain and arrest the
:1ccused. They stated that male family members such as IJrothcrs, llnclcs,
.rrHI lllcplwws had a customary right to prevent <l n·Ltiivr·'s wif,· from
, i•>fllllf'.. This custom, they opined, was based on tlw rwrion rlwr. rn
m:1rriage, a woman became attached not only to her husband but ulso to
her husband's extended family. However, contradicting lhis opinion, the
·wnman in question' gave the following evidence: 'our CIISI<l111 about divorce
t~ tll:ll H woman will run away with n man and th('ll til<' htl~h;:nd will

39
divorce her. . .I did not seek my husband's consent to a divorce. It is not in
,,,,,. <'llslom to do so. l could please myself. I did not lll'cd nw hushunrl's
,·,nsent'. This testimony, coming from the woman at th<' ,·,·ntr<' of tlw cnse,
<illg;!,esting that she was not simply eloping with the m-cused but was 111
tl1e process of divorcing her husband, would clearly have mitigaterl the
severity of any sentence passed on the accused.

llollt'Ver, disregarding the evidence of the woman <mel upholding the

"pin1on of the male assessors on the applicable native custom, the original
tnal judge convicted the accused of murder.

1 Jnc of the grounds for rejecting the evidence of the woman 1n1s the
<tssumption that her views were more likely to be 'a progrcssi1c woman's
conception of what a woman's right ought to be' rather than the proper
lliiti1·e custom on divorce.

lili:-; judgment was typical of the attitudes of coloniul cotJrls 10\\'lll·d 1hc
n·idc<nce of African women, particularly on matters rcJ;lling to marriage
alld divorce. There was a constant questioning of the identities and status
"r women, most persistently over the issue of whose w1fe n worn;;n W;ls.
<'nmpliC(Iting this, as in the Ndembera case, V.'ere qucs11ons <JITI' 11 hose
ll'lfc· 11 woman was at a particular time, amid contested i11terprctntions or
customary law.

These questions highlight the role of colonialism in both the production

,,,f :lmplil'ication of gender diffcr<'ntiution. Thn knd .-r,·dc·ll<'<' Ill tile
:1rgunwnt that colonial rule in Africa was essential]\· d 11111lc project, an
undertaking in which European men employed and collaborated with
African men, as well as confronting them.

40
 I 'pun appeal at the EACA, the Ndembera case focused on two muin
wwstions, of which the first was whether the original trial judge had
erred by making a judgment adverse to the appellant based solely on
the opinion of assessors, which the accused had no opportunity to
challenge or rebut, On this, the Court of Appeal nolt'd '''ith clis;q)proval
tltdt no evidence of the custom that the accused """ Hikgr~cl to h;-tve
<<>!11 ravened was tendered during the original trial, Till' second, and
perhaps more crucial, question was how to resolve the seeming
contradiction between the opinion of the assessors and the evidence
of the 'woman in question' as to the local custom on divorce, Unlike
1 he original trial judge, the judges of the EACA were reluctant simplv to
ucccpt the opinion of two court-appointed male assessors over I he
evidence of the woman at the centre of the case. These European men
s<Tnwd acutely aware of the possibilit}' of patriarchal und ge·m-rttliomtl

hi<Jscs in the opinions of male African assessors. The\' were also awurc
.i ll;~t suc:h gender biases, on the part of both African assessors and
l·:ttmpt:an judges, could subvert much-vaunted ideals or Bril ;,.,h justict' in

tile.· e:olonies. Commenting on the dismissive uttituck ol til:· onc•,itLli tt·iul

iud<>c·
J r-, roward the evidence of the woman, the J.Udiles
....... of rite· 1·:;\CI\ sliit<·cl:

If !his (woman's evidence] is to be regarded merely os a progressive

u·onwn 's conception of what a woman's right ought to be. it is sttrJ>risinq
liw! i1 elicited no re-examination and no question by eiilw1 thsc•ssor. II rnuy
Iedl /;e that the trial Judge who has hac/ a long Africnn expenew·e. wus
ltil/lself conversant with the native custom on the point, but if thor wus the
,·use. we respectfully suggest that it would have been better lwei he
ulfeiii]Jfed to elicit evidence of it by questioning either Aiusltn (the "'""""' 111

tlli· ,·use] or her husband who UX!S olso a prosecut1011 11'/PII-'ss. llrul surlt

41
 , ,, '11/euce been forthcoming, whether pro or contra, or boll 1. II 1e opi11 ion o( tile
u0sessors would have been pertinent and could rightly have lJeen acted
upon by the learned trial Judge. As it is, we feel bound to leave out of
nccow1.t this part of the judgment and treat this case as i( 1/w dec·eosed hod
l!n husiness to interfere with the person of the appellant /Jif physico/ /(m>c'.

i iw l':ACA accordingly altered the conviction of the appt'llant from murder

to manslaughter, guided by the Privy Council's ruling in 1he Dh<ilamini

c·usc, delivered five years earlier, that the role of assessors in trials
. involving natives could not simply be seen from the point of view of
aid given to the trial judge. The institution of assessors was also
intended as a safeguard to natives accused of crimes, and to
guarantee that the courts properly understood and applied their
customs. Achieving this objective meant that accused ll<iiJH'S h;Jd to lw
/p;l'en ample opportunity to challenge the opinions or court·nppointed
I .
assessors on native customs, particularly in trials for capital offences. In
tlw Ndembera case, the EACA was particularly critical of the dismissive
':q>pmnch of the lower court towards evidence on n<~lt\T ,·ustoms th;Jt
c"ntradicted that of the court-appointed assessors. The <'<lLJrt noted that
st;l'il an uncritical approach to the use of native assessurs thrc<Jtl·ncd to
pn·vcnt 'an alien court doing justice through ignorance'

4.3 Competence of assessors

There is some difference of opinion about the use of people's assesso1·s 111

c11ses. Some assert that they merely 'rubber-stamp' the professional

.i uclge 's view because of their lack of legal knowledge n nc! professional
, ''P<Tlise. Even more problematic is the assertion that. :Jl IJIJles, u people's
"';s,·ssor will not appear in a court proceeding, but simp!\ signs his nr hn
Jlame at the end of the judgment to confirm agreement wnh the JUdgment

42
 gic,en by professional judges, whilst at the same time warranting lhm he or
she has duly exercised the power and discharged the duties specified bv
L 1 1\ .

l "uri assessor's op1n10n can be summed up. In Bakubye Muzamiru

Jjumba Tamale Musa Vs Uganda43The facts of the case as accepted by
the High Court and Court of Appeal were that, between J 1111 and l·t 11 ' April,
'tll)i-\ <lt Tunduma, a place bordering Tanzania illHI Ug<~ncLI, the
;
' ''i'il<'ilants, Bakubye and Tamale, robbed Semakula Most's (deceasc·d) of 3
tttot:>r cehicles, 2 passports, personal effects and documents. In the course
olthe robbery Semakula was murdered.

r lne of the issues at the trial in contention was that tlw Court of Appeal
t,,tJ,·d to point out the fact that during the trial, the I !igh l'ourr judge'
ci<'kgntccl to the Deputy Registrar, the responsibility of c;ummiug up the
,,, idence and the law to the assessors. That this was in contravention of
Sn:tion 82 (J)4" of the Trial on Indictment /\ct. The Suprl'!lll' Court put to
i·,':tw ;,s to who is responsible for summing up the evidence and the
law to the assessors and whether this responsibility can be delegated.
, On this issue court found that it is the duty of the Judge to do this
and that such a duty cannot be delegated. In the instant case the
, judge had done it himself.

The importance of this case is that it shows the relationship of

responsibility as between the Judge and as assessor.

·!11 Jilt' supreme court of Uganda at Kampalacriminal appeal no. 56 of 20 l ;;

· \Vlwn the case on both sides is closed, the judge shall sum up the law und the eviCit'JH'<' 111 ilw
c;Jse to the assessors and shall require each of the assessors to state his or her opinion orally and
shall n-Toi-d each such opinion. The judge shall take a note of his or her strnunJng tlp to 1ht'
;,SS\'SSOrs.

43
Another i mportant case is Byaruhanga Fodori Vs Uganda45Th e
;tppcll;mt was tried and convicted o n two counts of th<' murde r or h is wife
.tnd his son co ntrary to sections 183 and 184 of th e l)cn;tl Code Act. The
<~ppl'llan t raised eight grounds of appeal and notable among them . That
the learned trial j u d ge erred in law in making appointment of the assessors
without the approval of the appellant and he erred in holding the trinl of the
('({se u•ith only a single assessor instead of the nu.m!Je l JHc>scr i!;ed IJy /(lw
court in dismissing this ground, the learned judge held Simil<trl~' , if
1 rial with a single assessor can be permitted when th e othe r assessor(s)
abse nt himself, we do not see any big difference wh en t he trial <>t<tr!s and
(' nels \\'ilh ass istance of a single assessor.

Tri;1lin co nsidering the oth e r apparent irregulari'ties li ke tlw defic iC'nc~ Ill

1he record on the assessors and the decision or th e 1rial judge to

com mence and proceed w ith the trial with a single Hsscssor, this court
rn usL determine whether the irregularity caused a su bstct11l i a l m isc;t rri::tge

or _justice.

Section 331 ( 1) of th e Cr iminal Procedure Code provides:

"The appellate court on any appeal a g ain s t conviction shall allow the
appeal if it thin ks that the judgment should be set aside on grounds
that it is unreasonable or cannot be supported h aving regard to the
evidence o r that it should be set aside on· the ground of a wrong
decision on any question of law if such decision has in fact caused a
miscarriage of justice, or on a ny other ground if the court is satisfied
that t h e re has been a miscarriage of justice, and in any other case
shall d ismiss the appeal:

1\ 1 \ppnli No.24 Of 1 999) 120021 UGCA 4 (8 May .2002):

44
 Provided that the court shall, notwithstanding that it is of the
opinion that the point raised in the appeal might be decided in is
favor of the appellant dismiss the appeal if it considers no substantial
miscarriage of justice has actually occurred."

!:: <~rdc·r to determine whether in fact any miscarriage olJUStice ocTUITed,

tilt· role of the assessors in our criminal justice system must be l<!K<'il into
account. Their importance in advising a trial judge on matters of fact
cannot be underestimated. However, their role is merely advisory and not
hinding on the trial judge. While their role might have~ lJC'<'n ven· important
'' lwn the judges were foreigners and therefore not ;:cquuinlt'd "1th our
customary laws and usages, their role is diminishing witl1 the replacement
of foreigners with Ugandan judges. In our view, failure to record the
pnrticulars of the assessors or whether they were sworn in or not cines not
,·;~use any miscarriage of justice.

~~. It is now established law that a trial can proceed with the assistance of a
single assessor if the other one fails to turn up during the 1rial or for <my
r<'<Json absents him and misses part of the trial. It is nr>l clt·nr. h<J\\t'\'CT,

"hell happens when a trial judge uses only one asst's;,ur and g:vcs no
r·xplanation why at least two were not appointed at tlw beginning of the
I ri:tl 10

W,· must hasten to add that we do not condone the failtm "I 1 ri<tl <''""·ts '"
sl rictly adhere to the provisions of the Trial on lnd :cl rnt:nl s IJL'crcc
regarding the assessors. We are of the view, however, th<ll it is high time
t!w impact of trials with assessors on our criminal justice system t\'dS

e1ssessed in light of the provisions of article I26(2)(e) of :he Conslitulion

'"i\drrangu s/o Nyagu vs. R. (1959) E.A. 875 as cited in Byaruhanga Fodon

45
 \\hich enjoins our courts to administer substantive justice without undue
regard to technicalities. To what extent, for example, is any irregularity
relating to the institution of assessors to be regarded as affecting
<<:llst;mtive justice or a mere technicality? The <lllS\\<'l '"this qtwstion
'< Ini !<->l ~l\vait another day·l7.

Uganda v Hussein Hassan Agade & 12 Ors4B the famous terrorism case.
The Court and the assessors in this trial must therefore wholly cl isa buse
1!wrnc-;elves of any influence, which this repugnant deed n1:."ill Jwvr· ltiiCI on

r!wrn; and instead rely strictly on the evidence adduced lwforc this Court
during the triaL

I think it makes sense to dispose of the second charge - that of belonging

L" " terrorist organization - first. In the course of sumnung up to the
::ss:·ssors, f ciirected them not to bother to advise me 011 !/lui churg<·, dS 011

1.1 point of law, I had made up my mind to strike the charge from the
tnclictmenL. I am fully aware that both the prosecution Hnd tlw dcrt·nce
lt;:tl canvassed the matter and made submissions 1 h: n·on. I I<>\\'t'\'l'r.
iJt·causc my decision thereon is based strictly on law, thought 111m proper
t<J have the assessors advise me on it.

Girisomu Bakaye and Others Vs Uganda 49 , where the trial judge llacl
l"tl<'cl to dire-ct the assessors on how to treat a wtr:wtt·d l'<l!tkssion
statement; but had, nevertheless, convicted the appellants. On appc<ll, tlw
Court stated, at p. 622, that:-

''/\/though there is no rule of law which requires con-obomtion of a retracted

'ul: 'tl!<'llt, it is o salutary n<le of proctice to seek suc/1 r, ,, ', ,fwnt!iull. ruul u

· Ndirangu s/o Nyagu vs. R. (1959) E.A. 875 as cited in Byaruhanga Fodon
"{Criminal session case no. 0001 of20!0) [20!6] UGHCICD I (26 may 2016):
'''[1965] E.A. 621

46
Court should direct itself and the assessors to that effect, and that great
caution should be exercised before relying on an unconobomted retracted
··roi<'JIIPllt. Where no such direction has been given. l/1is Cour/ u•i/1 not
unnnal!y give effect to an uncorroborated retracted statenwn I.

Uganda v Kawoyaso The accused, Kawooya Muhamed wRs indicted for

Murder C/S. 188 and 189 of the PCA. The particulars were that the
·", 1/Sl'd, in the night of 4th November, 2011 on Lakl' \/wtoriu ul l"tinda

'i!Ltge, Katabi sub-county in Wakiso District, murdered lluwemiHl 1</orwld.

b'rum the opinions of the Assessors and the Presidmg judge Masalu
Musene as he then was, in finding the accused guilty he noted that he
''"uld find a conviction as advised by the joint opinion oi' !Itt· gentklll<'ll
:\ •,s, 'SSOI'S.

"' tCnmmal Case No. 044 OF 20111 [2011) UGHCCRD 03 (5 January 20 I cJ):

47
 CHAPTER FIVE

Recommendations and Conclusion

1 ' 5.1 Introduction.

In this final chapter the researcher presents the recommendations he

rkcms best suited to fill the gaps that the researcher fouml ,,·,uwng in 1hc
~' ;,lt'lll after carrying out the researcher. The chapter '" diviclccl into two
pe~rt s, the Recommendations and the conclusion. The rn;carcher herein
gives the recommendations mainly on reform and forms the opinion that
assessors are still need in the judicial system only if rcl(mll can be m;1clc
'"' r hem to suit the changing demands of society.

5.2 Recommendations.

No LJ·uer words could have been spoken in jest than those used bv Middle
J·:ng!ish writer he wrote: 'some have taken two head is IJt'lln thu11 one: 13ut
It'll heads without wit, l wene as good none.51' In this JTg<ml, the lont· hc;1cl
tJf n judge is not always desirable. One does not have to look further than
cnmplex and scientifically advanced matters for inst;mccs where the
;ldclitional head of an assessor endowed with the required cxpnt ic;e <Hld
skill may well be desirable to prevent a miscarriage oi justiv. lksidcs
assisting in curbing legal costs associated with appeals, th<c desired
•
practice, if used in conjunction with an efficient and effective case
m.magcment system, will raise public conf1dence in the justin· s\slt'm.

Till· disagreement on matters of fact and law betwcc11 tlw ~tsst·sson; <ttld
the judge should not be done in open court but in the chambers. This will
help create some confidence in the public that the assessors are one

.li)!jJJ l!cywood Life; Poems, Themes; Works (154Cl),

48
lm~cther with the ,Judge; presently' the lay assessors HIT loud/.1· conlrollvcl
I'' I he professional judges and this creates a doubtful in 1p<~cl. in till' public
d s to the relevancy of these people.

Be occupationally competent. This means that each assessor must act

'" l'<lrciing to current sector practice. be competent in tht· lt11wtions t<l\Tred

I" 1he· branch of law they arc assessing. They will ILtl'<' ga11wd !heir
occupational competence working within the Justice, Community Safety
and Legal sectors or within an appropriate occupatiomli sector. Thev are
not required to occupy a position in the court more senior than th:.1t "r the
'"'''llst·cl they art' assessing. However courts must be tllcrt to the risks th:l!
;Jil such arrangements could present and ensure thatjust1ce is seen to be
done to minimize the possibility of collusion between the public opinion
and assessors.

I '' <Juld also recommend then provlston of current rcco,·d s or t Iwi r ski lis
<tncl supporting knowledge and understanding in the context or" n".·ent
role directly related to the matter before court in which t lwv nrc ltssessing.

/\sst·ssors should be familiar with the culture and mo<i11s opcr;mdi "r th<'
, ·'"'sin which they are appointed to assess; and must IJc· :dJlc 1<1 inttTpn·t
lllld make judgments on current working practices and technologies within
the urea of work

Ti nwlv trainings and refresher courses are also need to main til in t hc1r
, wcupH t ional competence by actively engaging in con t inttous pmrcssional
ci<'\'clopment activities in order to keep up to date with developments
rt'bting to the changes taking place in the Justice, Community Safctv and
L<'glt I sectors.

49
'I iw <lssessors' irrelevance is due to their lack of leual
,:;. knowkcll!.c.
,, Thc·se
i!Ctivities may include those offered by the judiciary, Justice Law and Ucler
Sector (JLOS) or other relevant providers in the sector like the different

Til<· appointing Magistrate should also be required to pru,·idc c·vidt·nn· of

how each assessor meets the requirements for appointment; for example,
certificates of achievement, testimonials, references or any other relevunt
n·<·ords to show that he or she is best suited. When ;,n ''"sc·ssor IS
··'"' ki11g towards the relevant Assessor qualification, tlw I l1gl1 cm11·t sh,>uld
'""!"· it a requirement that assessment decisions an· cllunttTsigrwd bv
another assessor who holds the qualification for assessing Qualifications.

The use of expert assessors should be encouraged as a C<J!Jiributton to Lhc

1"'"' ision of perfonnance evidence presented for assessrn··n 1. Tlw rnk of
1 he expert assessors should be to verify and colla borate: the t•vidence
su!Jmitted to the court in any trial where the Judge is not well versed \\'ith
the issues at hand .. This means that each expert willwss must, uccording
t<> issue at hand, be competent in the functions coven·ci by tlw cnse 10

\Ill ich they are contributing. They will have gained 1 hc~ir occu pa 1ional
competence working within the Justice, and Legal sectors.

Tlic Law should be amended to provide to trial even til till' abs,·nn· of
Court Assessors. The mandatory nature sometimes tJJ;Ji<cs Tri<Ils del<.J\'
hence delayed justice in instances where the assessors get lost and cannot
be found. In the past there were no defense 'lawyers or prosecutors to
:ll·guc out a case. Currently, there is a complete fair lwnring nf il nmlter
11 illc·!J mcludes appearance of relevant witnesses to the lll<IItc:I·. I tlwrl'i(>rt·
n·commend that the law be amended to relieve the asscossors of what he

50
 c:ills a rather redundant duty. An advocate is able to evaluate the
evidence before court but assessors' cannot. It is time the judicie1l svstem
pml·iclecl ce1pacity building for assessors if they are to lw retuinccl.lltloffwr
r,·,·11mmendation worth making is tht> net>d for reform in 1 lw l:t\1.

The law should be reformed to give room for the fact that assessors
opmwns becoming binding in some instances where the judge misdirects
l1imst'lf or to give room for the fact that the majority decision of <~sscssors

, ,tJIIto! be disregarded by the presiding judge without rnll'\1 unci or giving

suuncl reasons as to why the judge differs from it. This ll'ill create room for
the general public to look at the law promoting substantive .Justice ciS is
<'nshrined and provided for in the constitution as opposed to the view lwld
IJ\ the common people who look at the .Judge as the idll <tnd tlw <'lld in
tlscli'. Such a reform will make the decisions appear home grown ancl a
,~ rc lkction of the people's will.
!.
T!w researcher also recommends that assessors should IH· high !I 1 rHincd

m wtlh basics in practice and fundamentals in hearing ;111cl ndjudicalion tn

llliltt<TS of court and law. This will help to remove the common perceived
nulion amongst the judges that assessor's opinions arc just factuu I and
cannot be formed on matters of law.

Thc·it· <lppointment should be limited to special casc·s, Jt<lllH'I\ , ompkx

t'itSCS.

Appointments should be made under a structured cnse mclmJgt'ment

r>mgramme and may be clone during lhe pre-trial c,Ltg<'. nltc·rllnlivc·lv
I ,,.r,,rc: or during a case management conference.

51
Their role should be restricted to assisting the court in dealing with a
,;p,·r·ific matter only, provided they have sufficient skill iltHI <'Xpt·rietw<'. The
,,,J,· of the assessor(s) is that of an adviser, but only in n·spcTI of til<· issw~

111 dispute. It is for this reason that it can be argued that two people may·
be uble to solve a problem more effectively that an individual. The best
placed argument for such a recommendation is the fact that an assessor
' 111 nnl\· be in position to give advice where it is clue not It lSI IJ<Ti<ll'-<' lw is
, 1 1 !!< · hen c h .

5.3 Conclusion.

Besides being professionally educated, judges may not :ll<\'11\'s hm•t· the
,., rpmed expertise to analyse and measure the prob;Jiil'<' \<lltw of ,·xp<Tt
, 'tdcncc. To avoid miscarriages of justice and the expense· of appeals, a
s<'cond head with the requisite knowledge, expenence and skill of
n~usoning in the relevant field will serve as a potentiul benellt, smring
litigmion costs and raising public confidence in the jucli,·i:JI svstc·m ,1, It is
lli<'l>.'l(,t-c: a plausible argument for one to conclud<· tilHI rutli<T th<~n

<tiJolish assessors as some authors and legal fraternity members have

nrguecl, it is better to reform the law relating to the \\'<lY in \1·hicl1 they
''iwmk, train them and then as Lord ,Justice Denning oiJo,nn·d in llJ:i:'i:

I llavC' shared some tentative views on what a court-nppointcd assessor

cnn expect to do, and how laV~-yers and judges ·can expect proceedings to
i>c· ,·unducted in that light. However, there are other issues that com·t·rn
1!1<· .1ppointment of assessors in court which need looking mto. <Jnc nf the
'n"st pressing issues is his remuneration - who should IX.l\' l(n his i'<'cs
and how much should he be paid? These questions will also influence tht·

'THo !leads are better than one Assessors in High Court cases By Henr_\' L<'nn

52
pnrties' v1ews on whether an assessor should be <lppointed. or even
'' IJ,·Ilwr p;1rtit's should explore alternative dispute-resolut ""l nwdwnisms.
i\],,, ing forward, it may well be desirable to tap on the collective ,,·isclorn of
judges, lawyers, and collate a set of best practices that can guide lawyers,
judges and through the complex web of litigation.

·,lust as with the English oak, so with the English common law: om· could
rl<JI transplant it to the African continent and expect it t<> n·win tilt' tough
chmacter which it had in England. It had many principles of manifest
justice and good sense which could be applied with advantage to peoples
~>I. <'l'<'n· race and colour all the world over, but it !Jdd rllso rnan1·
r··IJilt'nwnts, subtleties and technicalities which wer<' rHJI suit<'d to other
k,]k. These off-shoots must be cut away. In those far-un· hmds tilt' people
must have a law which they understood and which lhn· would respect.
Til<' 1i1sk of making these qualifications was entrust<'d I<> tlw judges of
1 lr<~s<, lunds, it was a great task." It follows therefore frorn tlw r1b<>1't' thrrl
sud1 modifications to the law should be done to meet Llw chang1ng needs
of society.

53
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56