A comparative analysis of the law of evidence on confession in Uganda and the Islamic law of evidence is a challenging discussion. This study is set to examine the law of evidence on confessions in both secular law of evidence in Uganda and Islamic law of evidence.

The evidence of a fact is that which tends to prove its something which may satisfy an inquirer of the fact existence, courts of law usually have to find that certain facts exists before pronouncing on the rights, duties and liability of the parties and such evidence as they will receive in furtherance of this task is described as ‘judicial evidence’

The basic law of evidence on confession is contained in comprehensive Evidence Act which has it is origin in nineteenth century in India. Though it has now been replaced by Local enactment where by Uganda Evidence Act is closely modeled in the Indian Acts.

This research will cover background of the study, confession under the secular law of Uganda, confession under Islamic law, comparison of the concept of confession under the two jurisdictions.

BACKGROUND OF THE STUDY

There has been comparatively little legislative amendment to the Evidence Act since it is application to, or enactment in Uganda. This is not to say that the legislation has not at times been the subject of strong criticism and during the inter-war period, there was a view widely felt and strongly expressed among the members of the administrative service, who at that still discharged the vast bulk of the magisterial work- a view bitterly and successfully contested by most of the professional members of the judiciaries that a statutory body of evidence law.[1]

Incorporating the intricate principle of the English Law on the subject regarding the inadmissibility of certain types of evidence, in particular that of hearsay, was inappropriate to conditions in an African country (Uganda) and largely in comprehensible to its inhabitants to whom many of the principles were completely foreign and that injustice as a results, frequently resulted.

In 1928, a grave miscarriage of justice took place in Kenya and a committee set up to investigate the circumstances found that a wrongful conviction of murder had been the results of gross abuse authority by junior members of the police force and cost grave doubts on the suitability of the existing methods of conducting criminal trials in Kenya, where the accused was an unsophisticated African. Largely as result of the Committee’s report, a commission was set up in 1933, under the chairmanship of Sir Henry Gratten Bush, the legal advisor to the secretary of state for the colonies, to inquire into the administration of criminal justice in the East African territories.[2]

Recommendation by a majority of the commission was that the provisions in the Indian Evidence Act no confession made to a police officer should be admissible in evidence against an accused person should be modified so as to allow such a confession to be admitted if it were made to a senior police officer, it was recommended that at the same time the Uganda law should be brought into line by the exclusion of confessions when made to junior police officers.

In 1935, the Uganda Evidence Ordinance was accordingly amended so as to conform to the majority recommendation and confessions were made in un admissible if made to police officers below the rank of assistant inspector.

Other amendments have been made to Evidence Act, and the major change of recent times in the evidence legislation has been the replacement of the Indian Evidence Act. During the course of the present century a very considerable body of Uganda’s case law has been built up on the subject of evidence and it’s primarily to the decision of the Privy Council, judges of the court of appeal, high court.

Currently, in Uganda, the Evidence Act Chapter six which commenced on 1 august 1909 is still operational.

Since the main topic of the research is confessions. I find it more important to briefly discuss the origin of the evidence Act in Uganda because it’s the main statute to be used in this research.

The African Order in Council promulgated in 1889 under Foreign Jurisdiction Acts, Provided for the setting up of codes of courts in Africa exercising jurisdiction “ so far as the circumstances permitted…Upon the principles of and in conformity with the substance of the law for the time being in force in England in 1897. The East Africa Order in Council and the Zanzibar in Council, which replaced the 1889 order in the East African protectorate and Zanzibar respectively, stated the jurisdiction should be exercised by the High Courts in conformity with Indian enactments, one of which was the Indian Evidence Act.

1.0.3 ISLAMIC LAW OF EVIDENCE

Being the divinely revealed law, Islamic law seeks a number of temporal goals the most important of which is the pursuit of justice. Both the holly Quran and the Hadith of the Holly Prophet (PBUH) repeatedly emphasize justice and condemn injustices associating the former with reward and the latter with punishment.

The Islamic law of Evidence in this case will analyze the law of confessions.

The Islamic law has laid great stress on the evidence to prove the facts on confession relevant for the judgment of a court unless it’s proved beyond reasonable doubt that the accused has committed the crime or the defendant has violated the right of the plaintiff, the court cannot give judgment against the accused or defendant.

A confession being a statement, oral or written, made by a person accused of an offence, stating that he has committed that offence. Confession has been recognized as a source of conclusive proof of a right and a crime by the holly Quran and Hadith of the Prophet (PBUH)

The Holy Quran says”O you who believe, Be you’re staunch in justice, witness for Allah even though it be against yourselves…”[3]

The holy prophet said “if people would be given what they claim without evidence? Some persons would claim other people’s blood and properties, but it’s obligatory on the claim to produce evidence”

This means that in Islamic law of evidence, evidence is thus of supreme important in the administration of justice.

The object of the law of evidence on confession is to lay down principles for the proof of the fact relevant for the decision of a court.

Therefore, I will base mainly on a topic of confession both in Evidence Act of Uganda and Islamic law.

1.1 STATEMENT OF THE PROBLEM

In many cases it has been found out that people fail to understand and differentiate confession in both secular laws of evidence in Uganda and Islamic law of evidence and what it means, its rules, principles and the limitations in its application.

Because Islamic law has handled the confessions differently from the secular laws.

This research is to compare the two jurisdictions and come up with the best recommendations on how the law on confessions can be handled in both secular law in Uganda and Islamic law. Hence, the research is analyzing the better jurisdiction on confessions.

1.2 AIMS AND OBJECTIVES OF THE STUDY

1. To examine how confession is defined in both Islamic law of evidence and Ugandan law on evidence.

2. To examine the comparison of the two jurisdictions.

3. To recommend what will be useful for the attainment of confession under the Evidence Act and Islamic law.

1.3 RESEARCH QUESTIONS

1-What is a confession in both secular law and Islamic law

2-Compare and contrast the confession both in common law and Islamic law

3-What are the available challenges and their solutions

1.4 SIGNIFICANCE OF THE STUDY

This study will lead to the transformation of the theoretical abstract of confession to the real condition in the field. Comparing the two laws at the end of this research shall lead to critical analysis hence coming up with recommendations which can fit the situation under confession currently in Uganda.

Therefore, there is a comparison between both laws in application of the principles of confessions.

1.5 RESSEARCH METHODOLOGY

This study is doctrinal that is to say it will involve the analysis of statutory provisions such as Evidence Act, case law and Divine provisions which include the Holly Quran and the sunnah of the Prophet (PBUH). During the study data shall be collected using primary sources and secondary sources

The primary sources include, the Evidence Act, the constitution and the case laws, whereas for the Islamic part, the Holly Quran and the Sunnah of the Prophet (PBUH)

Secondary sources include text books and the opinion of the jurists for the Islamic law.

Technique to be used during the study includes discussions and comparing the two laws.

1.6 SCOPE OF THE STUDY

This research will only cover on confession in Ugandan law of Evidence Chapter 6 and Islamic law of Evidence, the extent to which the rules on confession is applied in both set of laws and its effectiveness in courts of law in Uganda.

1.7 LITERATURE REVIEW

The researcher has researched in many books, Articles, different academic research but has not found similar research in Islamic law of evidence and secular law of Uganda, however has found related materials which are very important in the completion of this research. Hence include,

H.F Morris, Evidence in East Africa (1968) London, Sweet and Maxwell ; African press Universities stated that; self exculpatory matter can amount to a confession if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover confessions must admit in terms the offences or at any rate substantially all the fact which constitute the offence. The admission of a gravely incriminating fact, even a conclusively, incriminating facts is not itself a confession.

Sir Rupert Cross and Colin Tapper, Cross on Evidence, 7^th edition, (1990) London, Sweet and Maxwell stated that; a confession forced from the mind by the flattery of hope, by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt that no credit ought to be given to it and therefore, it is rejected.

Since the above authors wrote about confessions in secular law, they however, did not compare it with Islamic law on confession. Therefore, I came up with this to compare the two laws on confessions and come up with the better jurisdiction.

Whereas in Islamic law of evidence Prof. Dr. Anwarullah, Principle of Evidence in Islam; A. S Noordeen stated that; a confession is a statement, oral or written, made by a person accused of an offence, stating that he has committed that offence, and the condition must be that a person who confesses must be adult and sane, thus confession of a minor, insane, sleeping person or intoxicated person is not admissible and confession obtained through inducement, threat, or violence is inadmissible.

Mohammad Saedan A. Othman, Introduction to Islamic Law of Evidence (1996), Harzaf Enterprises also stated that a confession of an accused person is admissible as long as it’s not obtained by force, threat, inducement or promise.

All the above authors on both Islamic system and secular law wrote about confessions. Therefore, it will greatly contribute my research since I will be referring to their work.

All the above authors of both secular law of evidence and Islamic law of evidence wrote about confessions, however, they did not compare the two jurisdictions. Therefore, I came up with this to compare the two laws and come up with the best recommendations on how best the law of confessions can be handled in both secular law in Uganda and Islamic law. Hence the research is analyzing the better jurisdiction on confessions.

CHAPTERIZATION

Chapter one : Introduction

Chapter two : Confession in secular law of Uganda

Chapter three : confession in Islamic law

Chapter four : Comparison on confession between secular law of Uganda and Islamic law

Chapter five : Conclusions and recommendations

CHAPTER TWO

THE CONFESSION UNDER SECULAR LAW OF UGANDA

2.0 MEANING OF CONFESSION

A confession is a species of admission but since there are special rule governing its admissibility, it must be treated separately. No definition of confession is obtained in the Uganda Evidence Act[4] but it generally refers to a statement by the accused person acknowledging guilt for an alleged crime. This definition is derived from the case of Swami V King Emperor[5] where Lord Atkins, stated that a confession must admit in terms either the fact which constitute the offence. Lord Atkins further stated that “a confession is a statement by an accused suggesting the inference that he committed the crime”.

This is also fortified in the Uganda v Yosamu Mutalanzu[6] where the accused was indicted for murder. He had been drinking local gin with the deceased and on their way home; the deceased asked for the waragi that the accused was carrying home. He refused to hand over and the deceased administered some beatings. The accused then stabbed him using a pocket knife and one week later the man died of the wound. The accused made an extra judicial confession by a magistrate. Court held that a confession connotes an unequivocal admission of having committed an act which in the law amounts to crime and must either admit in terms the offence or at any rate substantially all the facts which constitute the offence.

Confession is dealt with in section 24-30[7]. Of these, sections 24-26 deal with confession which are irrelevant and sections 27-30 with confessions which the court will take into account what is a confession and in what way does it differ from admission, the answer is found in the case of,

Pakala Narayanaswami v King Emperor[8] “no statement that contain self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed . Moreover, a confession must either admit in terms of the offence or at any rate substantially all the fact which constitutes the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not itself a confession.

A confession however, is received in evidence for the same reason as an admission, and like an admission it must be considered as a whole. Further, there can be an admission either in civil or criminal proceedings, whereas there can be a confession only in criminal proceedings. And admission need not be voluntary to be relevant, though it may affect its weight. But a confession to be relevant it must be voluntary. There can be relevant admissions made by an agent or even a stranger but a confession to be relevant it must be made by the accused himself.

2.1 THE DEVELOPMENT OF CONFESSIONS

In the early years of the development of the law of evidence, hearsay in general and confession in particular were admitted without serious question. Although Lord Summer in Ibrahim v R[9] asserts that the exclusion goes back to hale, its however, interesting to note that in the context, some early statutes do refer to such plea being acceptable only where the party shall willingly without violence confess. The origin of the true exclusionary rule is to be found in the id eighteen century, and achieved its first clear and authoritative formulation in the case of

R v Warrick shall[10] “a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt that no credit ought to be given to it and therefore it is rejected.

It is important to note that the court went out of it way to assert that the rationale of the rule was based entirely on considerations of credit , having first denied quite explicitly that it depended upon any regard to public faith in origin the rule has little or no connection with the privilege against self incrimination either. That doctrine had developed a century or so earlier in reaction to the oaths required by the courts of high commission and star chambers. The line between judicial proceedings in which that doctrine came to flourish and extra curial investigations was however, blurred by the investigatory functions of magistrates, which were not clearly or finally distinguish until after the establishment of a regular police force and the passage of the Indictable Offences Act of 1848.

The form of caution established by that legislation had an impact upon the attitudes of the judiciary to confessions secured by the police. This was held in the case of R v Baldry [11]

Between the end of eighteen century and the middle of the nineteenth century the rules excluding confessions were elaborated in a series of judgments at first instance. The condition of that period described by Lord Hailsham in the case of DPP V Ping Lin[12], a time when the savage code of the eighteenth century was in full force. At that time almost every serious crime was punished by death or transportation. The law enforcement officers formed no disciplined police force and were not subjected to effective control by the central government watch committee or an inspectorate. There was no legal aid, there was no system of appeal, to crown it all the accused was unable to give evidence on his own behalf and was therefore largely at the mercy of any evidence, either perjured or oppressively obtained that might be brought against him. The judiciaries were therefore, compelled to devise artificial rules designed to protect him against dangers now avoided by other and more rational means.

By the mid of eighteenth century, not without some grave judicial misgiving, it was accepted that in the words of Baron Parke[13] “by the law of England, in order to render a confession admissible in evidence, it must be perfectly voluntary and there is no doubt that any inducement in the nature of a promise or of a threat held out by a person in authority vitiates a confession.”

Thereafter, the formulation of the rule remained relatively constant, but became more and more rigid as a developing case law filled out the interstices of the definition by the determination of a particular dispute.

2.2 RATIONAL OF THE CONFESSIONS

The House of Lords declined to speculate in Ping Lin[14] upon exactly what basis the exclusion of involuntary confession was to be justified. a number have been suggested both in relation to the rules excluding involuntary confessions and to the exercise of exclusionary discretions which apply to confessional statement and to other evidence obtained by illegal means itself sometimes regarded as being governed by analogous policies, the general ground for accepting admissions that what a party says against his own interests may be presumed to be true has not always been accepted in relation to confessions. Thus English judge asserts first in 1798 that confession is a species of evidence which though not admissible is regarded with great distrust[15] and in 1820 that confession generally ranks highest in the scale of evidence[16]. This discrepancy is plausible enough explained on the basis that when satisfactorily established to have proceeded from a genuine motive and to have been accurately recorded. A confession may well be worthy of the highest esteem but just because this is the case, such high regard will also be sought by the less scrupulous for statements which merely purported to satisfy these conditions. In contested criminal cases, given that the accused is present in court, has not pleaded guilty and has retracted his confession, there must always be a possibility that the statement falls in to the latter category[17]. The requirement that confession be voluntary may be regarded as demanding satisfaction of quite different rationales. As noted above, Warickshall stressed the need for the confession to be credit worthy and to that end distinguishes sharply between the making of an oral statement which may or may not be false and the finding of objects which it assumes to be automatically cogent though it must be conceded that it is rare for evidence of the letter sort to prove very much without the assistance of testimony or other circumstantial evidence.

In the case of Burns v R [18] the court was anxious to point out that involuntary confessions are not presumed to be false but that at is nevertheless, dangerous from the point of view of the administration of justice to admit them.

Lord Salmon makes no reference to the basis of self incrimination, but refers only to the preservation by the judge of a fair trial by excluding involuntary confessions. This rationale , concerned so closely with the rights of the accused at his trial, seems to exemplify what has been called the “protective principle”[19] yet this principle itself has found expression in recent decisions for example in

Wong Kam Ming v R, Lord Hailsham said

“Any civilized system of criminal jurisprudence must accord to the judiciary some means of excluding confessions obtained by improper methods. This is not only because of the potential unreliability of such statements but also and perhaps mainly because in a civilized society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confession”

The concern here was the control of police behavior indeed the rationale is sometimes put on a still higher plane, and quite irrespective of the deterrent force of a decision upon police practice, related to the courts expression of abhorrence for the methods used. This is King V R; Lord Hadson expressed the view of the Privy Council by saying,

“This is not, in their opinion, a case in which evidence has been obtained by conduct of which the crown ought not to take advantage. If they had thought otherwise they would have excluded the evidence even though tended for the suppression of crime”[20]

In a stark contrast when in Wong Kam Ming v R[21] counsel for the respondent began his argument by expressing the reliability principle he was sharply upbraided by Lord Diplock with the ascertain that such an argument was contrary to authority nor the views in R v Sang[22] support a general disciplinary policy in this area, for as expressed by Lord Diplock

“It is no part of a judge’s functions to exercise powers over the police or prosecution as respect the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law, if it was obtained legally but in breach of the rules of conduct of the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial”

It can thus be seen that the cases exhibit no unanimity of approach and it was partly for this reason that in DPP v Ping Lin, the House of Lords took the view that any general reform must be left to the legislature.[23]

2.3 CONDITIONS FOR CONFESSION

Conditions are made admissible under the condition set out section76[24]

2- If in any proceedings where the prosecution processes to give in evidence of confession made by an accused person, it is represented to the court that the confession was or may have been obtained,

a-By oppression of the person who made it or,

b-In consequence of anything said or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof;

The court shall not allow the confession to be given in evidence against him exercises in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as a foresaid.

8- ...”oppression” includes torture, inhuman or degrading treatment and the use of threat or violence (whether or not amounting to torture)

It is important to discuss these conditions under four headings, oppression, unreliability, causation and burden of proof.

1. Oppression

In the case of Gallis v Gunn[25] in reference to statement by accused persons to the police that it was, “a fundamental principle of law that no answer to a question and no statement is admissible unless it is shown by the prosecution not to have been obtained in an oppressive manner ant to have been voluntary in the sense that it has been obtained by threat or inducements”.

In its substantive form as a condition negative the categorization of a confession as voluntary. In R v Prager[26], a case in which the confession of a sergeant in the royal air force on charges of espionage made after a prolonged but interrupted interrogation was held not to have resulted from oppression, and the court of appeal adopted a statement made by Sachs J in R v Priestley[27]

Whether or not there is oppression in an individual case depends upon many elements…they include such things as the length of time of any individual period of questioning, whether the accused person had been given proper refreshment or not and the characteristics of the person who makes the statement what may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world The court also relied upon the following questions given by Lord McDermott to the Bentham club in 1968.

“Questioning which by its nature, duration of other attendants circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbled and he speaks when otherwise he would have remained silent.”

The terminology of oppression nevertheless, received only an inclusive definition repeating the substantive for of the old judge’s rules. Its construction was considered by the court of Appeal in R v Fulling[28] in this case a woman accused of fraud at first refused to make a statement to the police, at one point during the interview she alleged that she was told by her interrogator that her lover had been engaged in a sexual affairs with another woman, who was incarcerated in the next cell.

She claimed that this upset her and that in her anxiety to get away from the police station she then confessed. She contended that the confession would be excluded under section 76(2) (a) as having been obtained by oppression. The trial court rejected this view and was upheld by the court of Appeal on the basis that the police and criminal Evidence Act 1984 was a codifying Act and to be construed without necessary reference to the old law.

This was explained upon the basis that the newly extended grounds of exclusion on the basis of unreliability were sufficient to cover many of the situations previously within the wider old ambit of “oppression”.

In R v Davison[29] they were further aggravated by the failure to charge for the offence with which the interrogation was principally concerned and the ground of oppression was held not to have been disapproved.

2- Unreliability

The danger of unreliability has always been regarded as one of the factors underpinning the development of the exclusionary rule for confession in English law. It had never previously played a part in the formulation of the test of admissibility which had been traditionally cast in terms of “voluntariness’’. The introduction of this notion into the English test for exclusion was recommended by the criminal law committee. It was not however, endorsed as a test for admissibility but was simply to be regarded as an important matter going to the weight of those confessions obtained otherwise than by “oppressive treatment” the new legislation adopts the principle proposed by the criminal law revision committee, doing no more than broaden the nature of the conduct affecting reliability from” threat or inducement” to anything said or done neither version limits such conduct to that performed by person in authority. It was stressed that the test was not to be based upon the actual but the potential, unreliability of a confession made in the relevant circumstances, which took into account such matters as the seriousness of the offence. It should be noted that in Victoria and New Zealand, the courts regard an unreliability test as in no way antithetical to the continued existence of a wide discretion to exclude on the ground of unfairness.

Although in R v fulling[30], it was stated that impropriety by the police is not a necessary condition to the establishment of potential unreliability, the operation of this head is conditioned upon ‘anything said or done” which is likely in the circumstances to induce unreliability. It should be noted that the test is objective in the sense that it’s immaterial that the police are unaware of the factors inducing the potential unreliability or they acted in perfect good faith. This was discussed in the case of, DPP v Blake[31], if the mental condition of the suspect is such that any statement he makes is likely to be unreliable; it may be thought that even the most innocuous remark might satisfy this requirement. Such view was however, rejected by court of appeal in

R v Goldenberg[32], in respect of interviewing of drug addict who might have been desperate for release in order to satisfy his addition, where it was emphasized that the stimulus must be external to the suspect, and likely to have an effect upon him. On the other hand it seems that in the case of such a suspect very little pressure may take the case over the line and into the area of potential unreliability. As noted above breaches of the codes of practice may influence a court in deciding that oppression has not been disapproved, it will if anything be easier to contend that unreliability under this head has been disapproved as discussed in the case of R v Doolan [33]

3- Causation

In Ping Lin case[34], Lord Hailsham remarked that “it’s the chain of causation which has to be excluded by the prosecution and not the hypostatization of any part of it”. Given the difficulties to which the notion of causation has led in other areas of the law , it might have been feared that such concentration might prejudice the simplicity of the test for admissibility aimed at in ping line case , but such fears were alleged by the decision of the court of appeal in R v Ronnie[35], in this case, the accused claimed that he had confessed because he was under duress, had been threatened by the police and wanted to prevent the rest of his family being charged with complicity in the frauds of which he was suspected. His evidence to this effect had received some support from one of the police witnesses who had testified that he believed that the accused had confessed in order to prevent the involvement of his family. Never the less, the court of appeal while recognizing, that in most cases there are mixed motive for confessing and that some of them may be inspired by something said or done by the interrogator, felt that it would be wrong to apply any refined analysis of the concept of causation.

The judge should instead apply the spirit of the test in much the way as it would be applied by a jury.

In a mixed motive case, this would appear to require a determination of the dominant motive. It should perhaps be noticed that there is a slight difference in the drafting of the two conditions in that the first relating to oppression is introduced by the word ”by”, where as the second which relates to unreliability is introduced by the phase ” in consequence of” if anything should turn on that difference, it would presumably be to require less in the way of the demonstration f a causal link in the case of oppression, which may perhaps more readily be inferred and where the law will be more anxious to mark its disapproval.

It is important to note that in order to qualify for exclusion, a causal link must always be established between something said or done by the interlocutor and the person making the confession.

4- Burden of proof.

In the case of DPP V PING LIN[36] at common law, it was for the prosecution to prove beyond reasonable doubt that a confession was voluntary. The matter is tested whenever ‘it’s represented to the court’ that one of the conditions has been satisfied. It has been held that merely to cross examine so as to suggest the satisfaction of the invalidating conditions of section 76 is not sufficient. This might have appeared to suggest that the court could no longer take the print of its own motion, but any such argument has been pre-empted by explicit provision allowing such a course.

In most cases of course, the defense will itself raise the point, usually with the prosecution informally and before trial so that a disputed confession will not be opened before its admissibility has been tested. Breach of the provisions of the codes of practice requiring the documentation of action by the police may operate to prevent the prosecution from being able to negate the exclusionary conditions of section 76 as seen in the case of R v Delaney[37]

2.4 WHO CAN TAKE DOWN A CONFESSION

Under the constitution of the Republic of Uganda, 1995[38], states that an accused person is presumed innocent until proven guilty or until he or she pleads guilty.

From this constitutional provision, an accused person has a right either to remain silent and not to make any statement that may incriminate him or an accused may make statements admitting his or her guilty. However, recognizing these rights and the importance of confessions, certain safeguards have been developed to guide the making and taking of confessions.

Before 1971, confessions could be made before a police officer of the rank of corporal by virtue of decree 25/71. This provision was amended such that a confession could only be made to a police officer of/above the rank of assistant inspector and before a magistrate.

Section 23(1) [39] states that no confession made by any person while he or she is in the custody of a police officer shall be proved against any such person unless it is made in the immediate presence of,

(a) A police officer of or above the rank of assistant inspector, or

(b) A magistrate, but no person shall be convicted of an offence solely on the basis of a confession made under paragraph (b) unless the confession is corroborated by other material evidence in support of the confession implicating that person.

Beronda v Uganda,[40] a confession had been made to a magistrate (by appellant) who was alone with the accused apart from the interpreter. The trial judge stated that a police officer should have been present. The appellant was convicted of murder and sentenced to death on the basis of voluntary confession and circumstantial evidence. On appeal, court held that the procedure adopted by the magistrate was wholly correct that it is undesirable that the police should be present while confession is recorded.

2.5 WHAT IS A VALID CONFESSION?

Section 24,[41] contains a substantive provision that makes confessions obtained through use of force, violence, threats, inducement or promises calculated to cause an untrue confession to be made in admissible . This section makes such confessions irrelevant

The law insists on voluntariness for 2 reasons,

1-confessions are a suspect species of evidence because people don’t normally make statements that are pre-judicial to them in their interest and so where such statements are made there is reason to suspect that there was undue inference.

2-our investigating machinery is bounty in the policing system that lacks resources. This causes overzealous police officers to adopt all sorts of methods of security conviction e.g torturing suspects, threats etc

Kanyike v Uganda, [42] court held that the voluntariness or otherwise of a confession can only be analyzed at a trial.

2.5.1 WHAT THEN DOES VOLUNTARINESS MEAN?

In DPP V Ping Lin[43] the appellant was arrested for using drugs, after some remarks by the police, he told them about his own part in the drug dealings and even gave more information about other deals. On the issue of whether those statements were admissible against him. The court emphasized that a confession had to be secured voluntary and where an objection is raised about a confession, the onus is on the prosecution to satisfy the judge beyond reasonable doubt that the statement was made voluntary.

A person in authority is one engaged in the arrest, detention and the examination of the accused or prosecution of the accused. R V Bourne[44] ,or someone acting in the presence and without a descent of such person e.g an arresting officer or police officer having the accused in custody etc.

In Njuguni and others v R [45] court that that it is a duty of a judge to examine with closest care and attention all circumstances in which a confession has been obtained from an accused person particularly if this person has been at police station for a long time before making that confession and that the onus is upon the prosecution to prove affirmatively that a confession has been obtained voluntary and that if there were any inducements they ceased to operate on the mind of the accused at the time of the making of the confession.

2.5.2 CONFESSIONS OBTAINED THROUGH INDUCEMENTS AND THREATS

Generally torture, threats, inducements etc would make a confession inadmissible but this will only happen where these things operated on the mind of the accused that caused the accused to say what he said. There is no stated measure of what amounts to a threat or an inducement and each case has got to be considered for it is own purpose. In commissioner of customs and exercise v Harts [46] during the course of investigating tax evasions, Harts was interrogated for about 3 hours and he made some incriminating admissions and was convicted on appeal against the conviction. Court held that these statements were not admissible because they would not have been made had Harts not been told that he must answer the questions or face prosecution and therefore, were made under threats.

Inducements/threats may be effected in ways other than just speech e.g threats against one’s family, the accused may be kept in a dark room and be entertained by the sound of beating administered /coming from other rooms, the accused may just be starred at.

In R V Zaveckas[47], the accused was charged with theft from a telephone booth, prior to the trial, he asked the police officer” if a make a statement will you give me bail now. And the police officer said ‘yes’ and the man made a written confession and was convicted, on appeal, court held that it made no difference that it is the accused not the police officer who raised the question of bail. That the statement was made as a result of an inducement by a person in authority and therefore, the conviction was improper.

Similarly, in Uganda v Ewaku s/o Edulu[48], court held that a confession extracted from an accused person by torture can hardly be said to be voluntary.

Under Section 25[49], states that if such confession as is referred to in section 24 is made after the impression caused by any such violence , force, threat, inducement promise has in the opinion of the court have been fully removed , then it is relevant.

This provision impliedly places a duty on courts to investigate the circumstances surrounding the making of a confession and if courts are of the opinion that the threat or inducement had been removed at the time of the confession, and then it will become admissible.

Arikanjelo v R[50], a mother left a year old daughter with the appellant, the girl disappeared and was found drowned, there was medical evidence to show that she had been sexually assaulted prior to the death. When the appellant was arrested, he admitted having drowned the girl a day before. A police officer told him “you are going to say what you told me yesterday but am not going to force you to do so”. Thereafter, he was cautioned and he made a confession.

On appeal, court held that the words did not constitute a threat or an order in the mind of the appellant because they were tempered by the words which followed and any possible effects they might still have had on the appellant would have been bated or removed by the words of caution that followed.

Under section 26[51] a confession cannot be merely irrelevant because it was made under a promise of security or in consequence of deception or drunkenness or a result of trickery.

In Doe kinnan v the Queen[52], the appellant was arrested for theft and murder while at the cell, he told a friend that he had murdered one of the men and even described where the money had been hidden. The money was recovered and he was convicted. On appeal, it was held that the appellant regarded B as a trusted friend and the questions B asked were not based on any promises neither was there compulsion in confessing the murder because B never promised anything if he was told.

2.6 REPUDIATION AND RETRACTION OF CONFESSION

The validity or otherwise of the confession becomes an issue when a confession is challenged in other words, when cases of repudiation and retraction arises. Retraction means that the accused has admitted the statement but wants to go back on it; he may claim that it was not true; he may claim that it was a mistranslated. Whereas, repudiation means that the accused person denies that he never made the statement alleged. Retraction and repudiation are common features of Uganda’s criminal law and they arise because of the way confessions are extracted. In the case of Tuwamoi v Uganda[53], the appellant was alleged to have committed a murder with the use of a spear. The deceased had made a dying declaration to his daughter and it admitted. The appellant made a confession and the following day he made a different statement completely denying the offence, only the first statement was adduced as evidence in court.

Court held that the basic difference between retraction and repudiation is that a retracted statement occurs when the accused person admits that he made a statement but now seeks to disown it generally on the grounds that he had been forced to make the statement. While a repudiate statement is one where the accused denies that he never made it.

Court also held that it is a well established rule of prudence that it is dangerous to act upon a retracted confession unless it is corroborated in a material particulars or the court is satisfied in it is truthfulness. That trial court should accept with caution a confession which has been retracted or repudiated.

It has been the practice for courts to draw a clear distinction between a retracted confession and a denied, where the accused maintains that he never made the confession at all or that the record, probably through faulty translation, does not represent what he actually said. In the case of a denied confession, provided that the court was satisfied that the accused made it, it would be reasonable to infer that it was denied because of its truth and corroboration would not normally be necessary.

2.6.1 How making of a statement can be proved.

This can be proved by conducting a trial within a trial. This is a ‘mini trial’ with the main trial and the type of evidence that can be led by the prosecution can be oral evidence and or documentary evidence.

In Kasule v Uganda[54], the Supreme Court reiterated the law and stated that a trail within a trial should have been held to establish the truth about the confession (in this case, a man had retracted his confession). The Supreme Court also emphasized that it is trite law that a retracted confession won’t normally support conviction unless it is corroborated by other evidences but that the court might do so if it is fully satisfied in the circumstances of the case that the confession must be true.

Further, in Amos v Uganda[55], court held that it is trite law that when the admissibility of a confession is challenged, then the objecting accused must be given a chance to state by evidence his grounds of objection through a trial within a trial. That the purpose of a trial within a trial is to decide upon the evidence of both sides, whether a confession should be admitted or not

2.6.2 Corroboration of a confession.

In matters of repudiation and retraction, corroboration is a very important aspect, because confessions are in many cases suspects, court will insist on corroboration before a conviction. There is always a need to look for other independent evidence connecting the accused with the crime. This would be evidence that supports other evidence already on record and it would be through witnesses etc. most cases emphasizes that the court won’t convict on an uncorroborated confession but although courts insist on this, as a matter of practice, if there is overwhelming evidence against the accused, the court may dispense with the requirement for corroboration.

In the case of Kasule v Uganda[56], the Supreme Court also emphasized that it is trite law that a retracted confession won’t normally support conviction unless it is corroborated by other evidence but that the court might do so if it is fully satisfied in the circumstances of the case that the confession must be true.

However, as a matter of practice, the trial court should direct itself that it is dangerous to act upon a statement which has been retracted unless there are other corroborating evidences.

2.7 PROCEDURE OF RECORDING CONFESSIONS.

Section 24[57] and the Evidence (statements of police officers) Rules[58], provides guidelines on interrogation, instruction methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under jurisdiction. They are intended to guide police officers in their interrogation of persons whether in custody or otherwise. In particular they are aimed at ensuring that confessions recorded by police officers are obtained fairly from a suspect.

In Uganda v Katalema and another[59] , the issue was admissibility of extra judicial statements made by both accused before the magistrate. Both accused had a minor injuries on their bodies, they were questioned separately .AIP took them to the local magistrate. He also took him with a corporal to act as an interpreter. The AIP first went in to see the magistrate and discussed with the magistrate for sometime before ushering the accused into the magistrate chambers. He had told the magistrate that the accused persons wanted to confess. The statements were taken and convicted, from which they appealed.

On appeal court held that the AIP was very disturbing and that the AIP was with the magistrate for 15 minutes telling him about the accuser’s earlier statements to him, that the presence of the police corporal in the chambers of the magistrate for use as an interpreter was intentional and one with sole purpose of extracting statements from the accused persons.

In R v Kagwa[60], the recording officer failed to administer caution and it was held that there was no sufficient compliance with the rules and the statement was rendered inadmissible.

2.8 CONFESSIONS AGAINST CO-ACCUSED.

This arises where 2 or more people commit an offence and they are jointly charged but one of them makes statement which amounts to a confession, sometimes even implicating the other accused.

Under section 27[61], where an accused person being tried jointly with other makes a confession affecting him or her and those others , the court may take into consideration that confession as against that person as well as against others.

The importance of this provision is that the court can use a confession by one person to affect other people with whom that person is jointly charged. In practice courts will only admit that confession if it passes the test of fully implicating the maker before it touches others. If the statement has the effect of shifting the guilt to the a-co-accused, then it may not be taken into consideration. The rationale for this was a real and qualified confession, a person makes it has exposed himself to the pains and penalties prescribed for the offence and this is the guarantee for the truthfulness of the statement”.

Further, in Karaya s/o Njonji and others v Uganda[62], the first and second appellants made confessions that implicated the third appellant. Apart from those confessions there was no other evidence against the third appellant. Court held that it is incorrect to regard a confession made by one accused in extra judicial statement as against his co-accused to hold that with some corroboration it is enough to convict. What is required is independent evidence which when linked with and supported by the confession of the co-accused removes beyond reasonable doubt about the question innocence of the co-accused.

Also in Gopa and others v R[63], court held that, the weight of evidence of a confession by an accused against his co-accused is lessened where, he obviously intends to implicate his co-accused and not himself, although actually he does fully implicate himself.

Conclusively, as a general rule in Uganda’s jurisdiction is that confession under the law of evidence given by the accused person is acceptable and taken against him or his co-accused, as long as it is not obtained through the provisions of Evidence Act section 24[64]

CHAPTER THREE

CONFESSION UNDER ISLAMIC LAW

3.0 MEANING OF CONFESSION

A confession was defined as a statement, oral or written made by a person accused of an offence, stating that he has committed that offence.

However, the various schools of law have formulated their own definitions of confession. And are as follows,

The shaffi definition, confession is a testimony of the existence of a proved right against the maker himself.

The Hanafis definition, admission of a right enforceable against oneself for the benefit of another.[65]

On the basis of the above definitions, a confession is therefore a form of admission for the purpose of proving a fact in order to establish a right or interest of another person against the maker.

3.0.1 Shariah evidence for validity of confession

The basis of confession as means of proof can be found in many ayah of the Quran and in the Sunnah,

The holly Quran says[66], “Nay, Man will be evidence against himself even though he were to put his excuses”

The holly Quran says[67] O ye, who believe, stand out firmly for justice, as witnesses for ALLAH, even as against yourselves”.

The holly Prophet said,[68] “O Unais! Proceed with haste to the woman and ask her whether she confesses and if she confesses then stone her”. The woman then confessed and thereafter she was stoned”.

3.1 CONDITIONS FOR THE VALIDITY OF THE CONFESSION

Several general rules have to be observed with regards to confession which may be applicable both the rights of Allah and the rights of man. The muqirrun must be a sound person, mumayyiz; his mind must be free from any doubt as to the subject matter of his confession. The confession made voluntary with full awareness of its consequences, the maker is a specific person and the subject matter of the confession is known.

According to the mejelle, the conditions for the confession are that the person making the confession should be of sound mind, mature, full consent[69], and not prevented from making any disposition under the law[70]

The above conditions apply equally to all forms of confession in all cases either pertaining to the rights of Allah or the rights of man. matters which are categorized as rights of Allah are zinah, theft and the drinking of intoxicants while matters in which the rights of man are joined is for example qazaf but therein lies more elements of the rights of man than of the rights of Allah.

Matters which are specifically within the realm of the rights of man are three relating to property, debts, nasab or paternity, qisas or retaliation.

We shall now examine these conditions in detail,

1 .A person must be adult and sane. Thus confession of a minor, insane, sleeping person or intoxicated person is not admissible. This is based on Hadith.

Prophet (PBUH) says, “three persons are exempted from any obligation and liability, the minor until he attains maturity, the insane until he recovers, sleeping person until he recovers”[71]

2. Baligh and Mumayyiz. The Hanafis do not require in all circumstances the condition of baligh. They however, insisted on the condition of mumayyiz for children. As a general rule, children are not qualified to make confessions[72] but children whose guardians have permitted them to engage in trade and to transact with the public are allowed to be the muqirrun with the same status as a an adult . The idea is that such children are deemed to be on par with adults as a result of their exposure to every day transactions involving adults.

Nevertheless, the confession made by such a child should only pertain to matters of mu’amalat e.g debts, trusts, loans etc.

In other matters e.g dowry, crimes, the confession of a child is not accepted even if the child had obtained prior permission of his guardian. On the other hand the person for whose benefit the confession is intended for is not required to be ‘Aqil or baligh’[73]

3. Freedom from slavery

The condition that the muqirrun should be free from the bondage

Of slavery is not an absolute condition that it should be complied with strictly before the confession can be accepted. As such the confession of a slave who had been permitted to engage in trade is admissible including confessions regarding hudud and qisas cases.

4. Free consent. The holy prophet (PBUH) said, “My ummaah has been exempted from the liability of the action done by mistake, forgetfulness or for which they have been forced to do”[74]. Thus confession made under threat, inducement, or promise is not admissible.

The Maliki School requires that confession be voluntary, otherwise it is invalid even if it would have led to the recovery of the victim in a murder or of stolen goods in a robbery. The Hanafis also argued that it is unjust a confession obtained by torture or threat even though it might be true.

Ibn al-qayyim and ibn hamz adopted a middle view by not permitting involuntary confession (except in hudud cases)

Thus ibn qayyim points out that if the accused is fortuned in order to obtain his confession of stealing and he does confess and the stolen property is found in his possession, his hands should be cut off.

On the other hand, the accused has a right of redress against those who ordered his torture, whether this is the ruler or any other person in authority since beating is illegal and oppressive act.

Confession obtained by deceit was however, allowed and preferred by ibn Hamz, since no coercion is involved. On this question he criticized imam maliki by commencing that deceit is forbidden. Ibn hamz attributes the use of trickery to the holy prophet (PBUH) and Harzaf Ali who used it to obtain the confession of certain suspects. He also argues that trickery is not like force.

However, imam malik’s view seems the more acceptable, for it is not true that the investigators report to deception and deceit is not prohibited. Furthermore, coercion nullifies a confession by invalidating the element of choice and negotiating the voluntary nature of the confession which is requirement of its validity. This effect is likewise in a confusion obtained through trickery. Thus the later must be considered the same in effect as involuntary confessions. Ibn Hazm reviewed harm or the threat of harm as the defect of involuntary confessions. While a confession gained through deceit is not without harmful consequences, it is more important to recognize the effect of the means employed as the means of coercing the accused to submit the will of the confessor[75].

It has been stated that by Hazrat Umar that, “A man would not be secure from incriminating himself if you meds him hungry, frightened him or confined him”.

5. Confession on behalf of another person is not valid. This means that confession binds only the person making it, unlike the force of evidence which extends to third person. The MEJELLE says that “evidence is an absolute proof in that it affects third persons; confession is a relative proof in that it affects only the person making such confession”.

3.2 EXTRA JUDICIAL CONFESSION

The confession should be before a court. If it took place outside the court, there is difference of opinion about its validity.

According to Abu haniifa, if the confession took place outside the court it is not valid and no evidence will be accepted on that because if the confessor before the court then the offence will be considered proved by his confession and not by the evidence of the witnesses, and if he refused to confess before the court, his refusal will be considered his retraction from the confession which is the offence of Hudud which relate to the rights of individuals like murder.

However, Imam Maliki, Shaffi and Ahmed all agreed that extra judicial confession is valid if it is witnessed by two witnesses.

Furthermore, Imam Maliki and Imam shaffi apply it to all cases and according to Imam Ahmed four witnesses are required in case of zinah on the basis of the requirement of four witnesses for its proof by testimony if the confessor retracts his extra judicial confession, Imam Maliki considers it as withdrawal of his confession that nullifies it but Imam Shaffi does not consider it withdrawn unless the confessor contradicts himself in his confession.[76]

The majority of the jurists, however, opine that an extra judicial confession, if voluntary, can be considered sufficient proof for an offence, liable for ta’azir if it has been made before any authorized forum or person or it is witnessed by two witnesses and with which the court is satisfied.

3.3 CONFESSIONS IN HUDUD CASES

The jurists of the Hanafis School are of the opinion that the confession made in hudud cases must be repeated for a number of times before it can be accepted.

The number of repetitions required depends however, on the hudud category.

a.Zina

According to the Hanafis, the confession for zinah must be repeated four times on different occasions. They base their opinion on the tradition of the holy prophet (PBUH) related to the authority of Abu Hurairah that when Maiz came to the prophet (PBUH) and confessed his guilty four times then the prophet (PBUH) ordered to stone him to death. It is further supported with a Hadith related on the authority of Burraidah Al- Aslami who said that a woman from the clan of Ghamid, came to the prophet (PBUH) and confessed four times that she had committed zinah. The prophet (PBUH) ordered that as she was pregnant she would be punished when she gives birth and then the child becomes old enough to carry on without a mother.[77]

Imam Abu Hanafis also agrees that confession must be repeated in four different appearances even though within the same sitting.

However, according to Imam maliki and Imam Shaffi only one time confession is sufficient in all offences including zinah because confession is an information and it does not need repetition, they also based their opinion on the prophetic Hadith where the prophet ordered Unais to go to that woman whose servant has confessed to have committed zinah with her and stone her to death if she confesses. The prophet did not mention four times in this HADITH and this only, one time confession was considered sufficient.[78]

a. Theft and consumption of intoxicants

For the offences of theft, consumption of intoxicants and inebriation, the Hanafis jurists differ as to the required number of times the confession must be repeated. According to Imam Abu Hanafis the confession is valid even if it is pronounced only once

According to Imam Abu Yusuf however, the confession must be made repeatedly before the maker can be convicted. The number of repetitions required is according to the number of witnesses necessary to establish the offence if the method of proof is by way of shahadah. Abu Yusuf and Al-Laith held that for theft, drinking of intoxicants and drunkenness, the confession should be pronounced twice.

3.5 THE CONFESSION OF CO-ACCUSED

A confession is a proof against the confessor only and it is not a proof against his co-accused.

This under Islamic law, the evidence of an accomplice is not admissible against his co-accused unless it is corroborated with independent evidence. The holy Prophet (PBUH) said; on the authority of sa’ad al-saidi that a man came to the prophet (PBUH)[79] and confessed that he had committed adultery with a woman whom he named. The holy prophet sent for the woman and enquired from her about that, she denied the allegations. The prophet punished the man and acquitted the woman.

Also on the authority of Abu Hurairah and Zaid Ibn Khalid that while they were with the prophet (PBUH), a man stood up and said to the prophet, “I beseech you by ALLAH that you should judge as according to ALLAH’S Law”. Then his opponent, who was wiser than him, got up saying, “judge us according to ALLAH’S law and kindly allow me to speak. He said, “My son was the servant of this man and he committed zinah with his wife and I gave one hundred sheep and a slave as a ransom for my son’s offence. Then I asked a learned man about that and he told me that my son should receive one hundred lashes and be exiled for one year, and the man’s wife should be stoned to death”.

The holy prophet said, “By him in whose hand my soul is, I shall judge you according to the law of ALLAH. Your one hundred sheep and the slave will be returned to you and your son has to receive one hundred lashes and be exiled for one year. Oh Unais, go to the wife of this man and if she confesses then stone her to death”. Unais went to the wife and she confessed thus she was stoned to death.[80]

It’s further based on the ground that when a co-accused confesses that he has committed the alleged offence, he becomes fasiq (wicked person) and does not remain credible and as such his evidence is not admissible against his co-accused.

In the opinion of imam Maliki, Shaffi and Ahmed stated that if a man accused to have committed adultery with a woman who is absent, hadd will be implemented on him. Similarly if he who is confessed to

Have committed zinah with a woman whom he does not know, had will be implemented on him. In the same way if he had confessed to have committed zinah with a woman and she denies the allegation, had will be on him and not her. But according to some Hanafis in cases where one party confesses and the other party denies the charge, had will not be implemented on both of them because the denial of the other creates doubt in the confession of the first party.[81]

It is important to note that according to some of the jurists, if a man and a woman who are charged for having committed zinah stated that they are wife and husband, their statement will be considered sufficient proof of their marriage unless as there is evidence on their zinah. But according to imam maliki, they have to prove their marriage, failure which will be punished.[82]

The confession of co-accused may, however be considered a presumption in offences liable to ta’azir’

3.6 RETRACTION FROM CONFESSION

Retraction from confession in hudud cases is admissible before or after the announcement of the judgment or during the execution of the punishment and it nullifies they had punishment. But in matters related to the rights of an individual such as qisas and diyat is not admissible. Similarly offences liable for ta’azir are also not admissible .retraction from confession is not admissible in all civil cases and once a person confesses, he shall be liable for the right created there in even if he retracts it.[83]

According to some jurists like Hassan, saeed ibn jubair and ibn Abu Laila, retraction from confession is not admissible in any offence whether it relates to the rights of ALLAH or rights of man and when the offence is proved by the valid confession, the confessor must be convicted even though he retracts the confession.[84]

According to Imam Abu Haifa, maliki and Ahmed only running away during the execution of punishment amounts to retraction from confession irrespective of whether or not he expressly retracted the confession. But imam shaffi merely running away during the execution of the punishment is not retraction unless he expressly retracted and the execution of punishment will be stopped by his running away.

Prophet (PBUH) [85] said that in a retraction narrated by Jabir ibn abdalla when stoning Maiz, he run away and said, “O people, return me to the prophet, my people deceived me and killed”, but we stoned him to death. Later on when we informed the prophet of his running, he said, “Why didn’t you hear and bring him to me”.

While discussing had, if a person makes confession and afterwards retracts from such, punishment is not to be inflicted upon him, as the punishments are purely a right of ALLAH. These hadd include wine drinking or any intoxicating liquor.

If a person confessed the commission of theft which is related both to the rights of ALLAH and man and then retracted , then had will not be implemented on that person and he will held responsible for the stolen property or it is compensation.

Imam Maliki has conditioned the admissibility of retraction with sound grounds. As he said that “ retraction from confession in the rights of ALLAH such as drinking wine, theft is admissible provided there are sound grounds for that “ if they are no such grounds, then there is a difference of opinion in it is admissibility, if it relates to both rights of ALLAH and man like confession of theft, in this case, the right of the person is due on him whether he offers some confession of being married, he will be stoned to death and will be whipped 100 stripes.

Of an offence is proved by evidence as well as confession and then the accused retracts the confession before judgment, there is consensus of opinion among the Hanafis jurists that retraction of confession nullifies the evidence and thus retraction from confession at this stage will remove had from the accused. But if he retracts the confession after judgment which was based on evidence then according to Abu Yusuf, hadd not to be implemented on him because the evidence is only effective when there is no confession at any stage. According to Muhammad, hadd will be implemented on him In this case because the offence is proved by the evidence.[86]

Also imam shaffi is of the same view that if a hadd offence is proved by the evidence of witnesses and then the confessor retracts his confession, still the punishment of hadd will take place because it is proved with evidence of the witnesses. This is because if retraction nullifies the evidence then it will be made a source for removing of hadd punishment in all cases.

It is also mentioning that according to Abu Haniifa, Maliki and Ahmed, if a judge heard an extra judicial confession of an accused, he is not authorized to base the judgment on that in the court. But there are 2 views. In shaffi school of thought, the preferred one is that judge will not base his judgment and that he has seen, known or heard outside the court while another view is that the judge is authorized to base his judgment on what he has seen, heard or known outside the court.[87]

In conclusion, although the jurists have given their views about the confession in the Islamic perspective, the primary source they have to base on is the teaching from QURAN AND SUNNAH (tradition) of the prophet (PBUH).

Prophet said [88] “I have left for you two things if you will adhere to it you will not go astray. That is the book of ALLAH (QURAN) and the sunah”.

However, they are entitled to their opinion as long as it is in conformity with the primary sources as mentioned.

CHAPTER FOUR

COMPARISON OF THE CONCEPT OF CONFESSION UNDER THE SECULAR LAW AND ISLAMIC LAW

4.0 SIMILARITIES

The general rule in Uganda is the same as in Islamic law, that confession under law of evidence given by the accused person is acceptable and taken against the person who has given it.

However, according to the provision of section 24[89] provides for an exception to the general rule, where a confession made by an accused person is irrelevant if the making of the confession appears to the court, having regard to the state of mind of the accused person and to all other circumstances, to have been caused by any violence, force, threat, inducement or promise calculated in the opinion of the court to cause an untrue confession to be made.

This is the same in Islamic law position that a person, who voluntary or out of his own confess of the wrong act done by him, shall be held responsible for such act. This is based on the Hadith of the prophet (PBUH), who said

“My ummaah has been exempted from liability of actions done out of mistake, forgetfulness, coercion”.

Thus the confession given under threat, inducement or promise is not admissible in both jurisdictions.

The circumstances under which a person may confess voluntary or involuntary. In the case of Callis v Gunn[90] where Lord Parker C.J said in reference to statements by accused person to the police that it was.

“a fundamental principle of law that no answer to question and no statement is admissible unless it is shown by an oppressive manner and to have been voluntary in the sense that it has not been obtained by threat or inducement”.

It is also in line with the Islamic law, a confession obtained voluntary is acceptable, and however, if it is obtained by force, threat is not admissible.

It is agreed among the jurists that the accused cannot be forced to admit guilty. Ibn Al-Hazm suggested in Al-Muhalla, that neither the QURAN nor ijmaa (consensus) allow examination by beating, imprisonment or threat. And the Malik’s require that confession be voluntary, otherwise it is invalid even if it would have led to the recovery of stolen property in robbery. The Hanafis also reject the obtaining of confession by force or threat.

Under shariah law , in a case of a doubt in a confession, it is not admissible, the prophetic tradition provides that “set aside the punishment if there is at least a doubt”[91] this shows that a confession given by an accused person shall not be admitted if there is a doubt hence the accused will not be punished.

This is in line with the provision of Evidence Act that “the accused person shall be entitled to be acquitted…is satisfied that the evidence by either prosecution or defense creates a reasonable doubt as the guilt of the accused person in respect of that offence.

Both in secular law and Islamic law , confession can be made orally, or written which suggest any inference as o any fact in issue or relevant fact and which made by any of the persons under section 16[92]

4.1 DIFFERENCES

At secular law the court does not allow confession be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (not withstanding that it may be true) was not obtained as afraid by…oppression including torture, inhuman or degrading treatment and the use of threat of violence (whether or not amounts to torture).

In the case of Callis v Gunn[93] , it was held that the statement by the accused persons to the police that it was a fundamental principle of law that no answer to a answer to a question and no statement is admissible unless it is shown by the prosecution not to have been obtained in an oppressive manner and to have voluntary…”

However, the differences will regard to burden of proof under the shariah law is that confession is a voluntary act done by the accused person. Therefore the accused person has the onus to prove that really he did the act. This is based upon the tradition of prophet (PBUH) it was related on the authority of Abu Hurairah that when Maiz came to the holy prophet (PBUH) and confessed his guilty four times, prophet then rendered to stone him to death.

Therefore, under confession is proved beyond reasonable by the prosecution under secular law while in Islamic law it is the accused to prove beyond reasonable doubt, otherwise he or she will not be punished or liable.

In the contemporary law, there are contradictions in the issue whether an onus of proving that a confession was voluntary lay upon the prosecution, it was or whether an onus of providing that it was voluntary lay upon the accused. This was discussed in Woodroffer[94] he came up to the conclusion that “the onus is upon the accused of showing that a confession he has made is irrelevant but not to corresponding section of Uganda Evidence Act states that the court shall presume that any document purporting to be a statement or confession by a prisoner or accused person taken in accordance with the law is genuine and that any statement as be made by the person signing at are true and that such confession was duly taken.

In the Ugandan case of R v Agricola Kanyerihe[95] , here reliance was placed on the section of the Evidence Act putting the burden of proof as to any particularly fact upon the person who wishes the court to believe this fact for holding that the onus of proving involuntariness lay on the accused.

This view has since been emphatically rejected by the East African Court of Appeal in , Njuguni s/o Kimani and others v R [96] , it was stated that it was “incumbent upon the prosecution to prove affirmatively that such confessions were voluntary made and were not obtained by improper or unlawful question or other methods” and moreover, that it was the duty of every judge and magistrate to examine with closest care and attention all the circumstances in which confession had been obtained by a police officer, particularly when that person had been in police custody.

In Islamic law of evidence such contradictions does not exist because laws that govern cases are not manmade laws which are entitled to contradictions but it is spiritual and cannot be changed. For instance the holy Quran[97] and the Sunnah of the prophet (PBUH). hence the onus of prove in Islamic law belongs to the accused person as long as he or she fulfills the conditions of attaining puberty, being sane, awake and not having it by threat, inducement or force.

Whereas in secular law, the accused at his trial repudiates or retracts his confession or maintains that it was not voluntary, then before the confession may be admitted, the court must conduct “a voire dire”. In the absence of the assessors and decide, upon the evidence on both sides, whether the confession should be admitted. This therefore, cannot give effective judgment; the judges may take in appropriate decision which may affect the accused.

However, in Islamic law, it is clearly stated that retraction from confession in hudud cases is admissible before or after the announcement of the judgment or during the execution of the punishment and it nullifies the hadd punishment. But retraction from confession in matters related to the right of an individual, such as qisas

And diyat is not admissible. Similarly retraction from confession in an offence liable for ta’azir is also not admissible.[98]

According to Imam Abu Haniifa, imam Maliki and Imam Ahmed, merely running away during execution of punishment amounts to retraction from confession. But according to imam shaffi, merely running away during execution of punishment is not retraction from confession unless he expressly retracted, the prophet said “why you did not leave him so that he might have retracted and got rid of the punishment”

Uganda’s Evidence Act [99] in line with the confession implicating co-accused states that “when more than one person are being tried jointly for the same offence, and a confession made by one of the those persons affecting himself or herself and some other of those persons is proved, the court may take into consideration such as against that other person as well as against the person who makes the confession.”

While under Islamic law, a confession is a proof against the confessor only and it is not a proof against his co-accused, thus in Islam the evidence of an accomplice is not admissible against his co-accused unless it is corroborated with independent evidence, it is based on the holy prophet (PBUH), that a man came to the prophet and confessed that he had committed adultery with a woman whom he named. The holy prophet sent for the woman and enquired from her about that, she denied the allegation. The prophet punished the man and acquitted the woman.[100]

If an accused confesses it is upon the accused to confess or admit, if not then why punish someone when not confessed or agree upon the confession of the person confessing.

In secular law confession of co-accused may be admitted. This is not a good law because the accused may implicate others wrongly in order to share the punishment or to run away from the offence. Therefore Islamic law on co-accused is the best because it does not punish someone who didn’t confess.

Primary the source of law in both common law and Islamic law differs. In Islamic law a confession can be traced from the Quran and the Sunnah as the primary source of law and the opinion of the jurists as the secondary source of law.

Whereas in common law, the primary source is the constitution of Uganda and statutes among which the evidence Act Cap 6, Uganda official secrets Act and case laws as the secondary source of law. Hence it shows the authenticity of the Islamic law because it is a divine law guided by ALLAH. At the same time is not a surprise why a secular law has been amended several times and also having a lot of contradictions all this is because it is a manmade law which is bound to contradictions.

In Uganda’s law of Evidence, confession can be given by the accused person only once as a witness to implicate him of the offence he did. This shows that a person being a witness against himself can confess once and it will be taken against him. And the Uganda Evidence Act is silent about as witness giving evidence (confession) once or more than once.

But under the Islamic law, according to imam Abu haniifa and Imam Ahmed, it is necessary in the case of zinah to have four separate confessions as four witnesses. This is necessary for it is proof by testimony.

They based their opinion on the tradition of the prophet (PBUH), related on the authority of Burraidah Al-Aslami who said that Ghamidiyyah who was a woman from the clan Ghamid, came to the prophet and confessed four times that she had committed zinah, the prophet ordered that as she was pregnant she would be punished when she gives birth to the child and then the child becomes old enough to carry on without a mother.[101]

Therefore, it is good to give chance to the accused to have four separate confessions as witness because it gives him time to rethink of what he is confessing about and also a chance to retract but if chance is not given to and the confession is given once yet the accused might confess because of the pressure, threat or any other reason unknown to the judge.

CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS

5.0 CONCLUSION

in conclusion according all what was discussed in line with confession in both secular law and Islamic law, it’s clear stated that Islamic law is the best law due to the following Hadith of the prophet (PBUH),

In Islamic law confession is a statement, oral or written made by a person accused of an offence stating that he has committed that offence under a condition that if “the person is minor until he attains the age of puberty or mad until he recovers, or sleeping person until he awakes”[102]

The punishment of confession under hudud cases varies from that of qisas, ta’azir because hudud cases are between the accused person and Allah, but qisas and ta’azir are between individuals. It’s also the same with retraction from confession in hudud cases is admissible but in matters related to the rights of individuals such as qisas, diyat and ta’azir is not admissible.

In Islamic law, a confession is a proof against the confessor only and not his or her co-accused as seen in the main discussion.

Also in Islamic law, it is necessary in the case of zinah, Allah says[103]” to have separate confessions as four witnesses are necessary for its proof by testimony”

In Islamic law, being a divine law was not amended at any time, however, the secular law being a man made law was amended several times with a lot of contractions as seen in the main discussion. Hence giving a momentum to Islamic law on confessions.

5.1 THE RECOMMENDATIONS

It is recommended that the Evidence Act Cap 6 should include the definition of confession because it’s silent about it.

I recommend that the Islamic law system should be adopted in line with the burden of proof in Uganda law of Evidence Cap 6 under confessions because it is the accused person to proof beyond reasonable doubt that his or her confession is true.

In Islamic law, the onus of proving is upon the accused person, hence it is recommended to take the Islamic law system which has no contractions to its ways of formation being a divine law whereby primarily Quran and Sunnah are taken as the supreme law and it has no doubt.

Quran says “this book has no doubt and is guidance to mankind”

I also recommend that in issue where the accused person at his or her trial repudiates, retracts his or her confession, court should not conduct a trial within a trial because confession is a voluntary act done by the accused person and the decision out of the trial may not be in favour of the accused. Therefore, it is important to adopt the clear system under the Islamic law.

I also recommend that Uganda Evidence Act should adopt the Islamic system on confession implicating the co-accused because, if an accused person confesses that he is the one to be punished and its upon the other accused to confess also if not why punish someone when he or she has not confessed or agree upon the confession of the person confessing.

I also recommend that the Uganda Evidence Act should adopt the Islamic system of four separated confessions in matters of zinah as seen in the main discussion.

BIBLIOGRAPHY

1. Sir Rupert Cross And Collin Tapper, (1990) Cross On Evidence, (7 Edition) London, Dublin, Edinburgh

2. H.F Morris, (1968), Evidence in East Africa

3. Mohammad Saedan A. Othman, (1996) An Introduction To Islamic Law Of Evidence, Harzah Enterprise.

4. Bill McLean , Sahih Muslim http://www.mclean.faithweb.com

5. Prof. Dr.Anwarullah, Principles Of Evidence In Islam, A.S Noor Deen

6. Dr. Muhammad Taqi-Ud-Din Al-Hilali, The Noble Qur’an Translated, By King Fahd Complex For The Printing Of The Holy Qu’ran Madinah. K.S.A

7. Dr. Muhammad Muhsin Khan, (1994) Sahih Al- Bukhari, Arabic- English Publish Maktaba Dar-Us- Salam

8. Vepap. Sarathi, 2006, Law Of Evidence, (6^th Ed) Printed In Delhi 1267, Kashmere Gate, Old Hindu Collage.

[1] H.F Moris, Evidence in East Africa (1968); African Universities press

[2] Ibid, page 39

[3] Quran 4:135

[4] Chapter 6, Laws of Uganda 2000

[5] (1939)volume 1 All England Law Reports At Page 397

[6] (1988-92)High Court Bulletin At Page 44

[7] Uganda Evidence Act Chapter 6, Laws of Uganda 2000

[8] (1939) volume 1, All England Law Reports at Page 397

[9] (1914)Appeal cases 599 at 588

[10] (1783)1 Leach 263

[11] (1852)2 Den 430

[12] (1976)Appeal cases 574 at 600

[13] R v Baldry (1852)Den 430 at 444

[14] (1976)Appeal cases 574 at 595

[15] By sir w. scot in Williams v Williams(1798)304

[16] Mortimer v Mortimer(1820)hag con 310 at 315

[17] As per Cave J in R v Thompson(1893)volume 2,Queens Bench at Page 18

[18] (1975)132Criminal law report 258 at 262

[19] Lord Solomon at 445, 1237

[20] (1969)IAppeal cases 304 at page 319

[21] (1980)Apperal cases 247at page 251

[22] (1980)Appeal cases 402 at page 436

[23] (1976)Appeal cases at page 5

[24] The police and criminal Evidence Act 1984

[25] (1964)volume 1,Queens Bench at 495

[26] (1972)volume 1,All England Law Reports at page 1114

[27] (1967)51 Criminal Appeal Report 1

[28] (1987) volume 1,Queens Bench at page 426

[29] (1988)Criminal Law Report page 442

[30] supra

[31] (1989)88 Criminal Appeal Report page 179

[32] (1989)88 Criminal Appeal Report 285

[33] (1988)criminal Law Report page 747

[34] ibid

[35] (1982)volume 1,All England Law Reports at page 385

[36] (1976) Appeal cases 574 at 597

[37] (1989)88 Criminal Appeal Report 338 at 342

[38] Article 28 (3) (a)

[39] Uganda Evidence Act Chapter 6, Laws of Uganda 2000

[40] (1974) East Africa law report page 46

[41] Uganda Evidence Act Chapter 6, Laws of Uganda 2000

[42] (1993) volume 3,Kampala Law Reports at page 76

[43] (1973) volume 3, All England Law Reports at page 175

[44] (1910) 6 Criminal .Appeal page 8

[45] (1921) East Africa Court of Appeal at page 316

[46] (1967) volume 1,All England Law Reports at page 177

[47] (1970) World Law Reports at page 516

[48] (1978) High Court Bulletin at page 9

[49] Uganda Evidence Act Chapter 6, Laws of Uganda 2000

[50] (1961) East Africa law report page 9

[51] Uganda Evidence Act Chapter 6, Laws of Uganda 2000

[52] (1969) 1 Appeal cases page 20

[53] (1967) East Africa law report page 84

[54] (1992-93) High court bulletin page 38

[55] (1992-93) High court bulletin page 29

[56] supra

[57] Uganda Evidence Act Chapter 6,Laws of Uganda 2000

[58] Rules statutory instruments -43-1

[59] (1974) High Court Bulletin at page 142

[60] (1961) East Africa law report page 153

[61] Uganda Evidence Act Chapter 6, Laws of Uganda 2000

[62] (1920) East Africa Court of Appeal at page 321

[63] (1953)volume 20, East Africa Court of Appeal at page 318

[64] Chapter 6, Laws of Uganda 2000

[65] The majele, an English translation of Majallah Al-ahkam, Pakistan, 1980

[66] Quran 75:14-15

[67] Quran 4:135

[68] Sahih al Bukhari, vol 8, p 314

[69] Mejelle, an English translation of the majallah Al-ahkam Al-Aaliyyah, tyser C R Law publishing company, Pakistan, 1980, article 1576

[70] Mejelle, op. cit article 1576

[71] Al-san’ani, subul al-salam, volume 4, page 78

[72]Al-san’ani, subul al-salam, op, cit

[73] Draft of the Evidence Act of the Syariah Court(federal territory) 1988 , Section 18(4)

[74] Ibn asir, jami’a al-usul, vol.4, page 136

[75] Bassianumi, M.Chief, The Islamic criminal justice system, page 106-107

[76] Hanif,CM.A Comprehensive Commentary on qanun-e- shahadat Order 1984, page117-118

[77] Al-Zarqani, Sharh al –muwatta of Imam Maliki, Vol.8, page81

[78] AL-Marghinani, Ali, Al-Hidayah(English translation by C Hamilton) book 7, chapter 1, page 117

[79] Hadith Malik 493:1520

[80] Hadith Malik 493:1524

[81] Audah , Abdul Qadir, Al-tasharia al- jinaial al islami , vol 2, page 374

[82] ibid

[83] Audah, Abdul Qadir, al tasharia ,al jinia, al islami, vol2, page 435

[84] Bahnasi , Ahmed Fathi, Naziriyyah al is bat, page 158

[85] Ibn Qudama, al-maghni, volume 10, page 173-185

[86] Bahnasi, Ahmed Fathi, Naziriyyah al is bat, page 188-189

[87] Ibid, page 438-439

[88] Jibir bin Abdullah, volume 6, chapter 31, Hadith number 3786

[89] Uganda Evidence Act Chapter 6, Laws of Uganda 2000

[90] (1964)volume 1,Queens Bench at page 501

[91] Al-shaukani, Mohammad bin Ali, Nail Al-Autaar, Mustaffa Al-Babi Al-Halabi,Egypt,1961, third edition, volume 7, page 110

[92] Uganda Evidence Act Chapter 6, Laws of Uganda 2000

[93] supra

[94] (1936) volume 6, Uganda Law Reports at page 10

[95] (1936)volume 6, Uganda Law Reports at page 10

[96] (1954) volume 21,East Africa Court of Appeal at page 311

[97] 2:2

[98] Audah , Abdul Qadir, al-tasharia al-jinaial-islami, vol page 435

[99] Section 27

[100] Sahih Al-Bukhari Vol.3, page 356

[101] Al-Zarqani, Sharh al- Muwatta of Imam Maliki, vol.8, page 81

[102] Al-san’ani, subul al-salam, volume 4, page 78

[103] Quran 4:15

The analysis on confession in islamic law and uganda secular law - Full research report

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