Maintaining peace, security and safety, law and order in Uganda, some of the foundations necessary for a truly just society, does not come as easily as it ought to, especially when the requisite systems, both physical – like the policemen, and technological – like CCTV gadgets, are wanting.
The efficiency of institutions too is wanting. Police officers are either ignorant of their responsibilities or negligent/reckless and intriguingly, when the cases involve “high profile members of the public”, they flinch, and let them through their fingers.
In the instant case
In one of those kinds of “high profile cases”, an untouchable, who we now know is a one Kanyamunyu, who allegedly shot another man, Akena, in the parking lot at the Forest Mall, Lugogo, before spending five hours to drive him to a hospital where he later died due to the intensity of his wounds.
Fortunately (for Akena) or otherwise (for Kanyamunyu), he – Akena – died after detailing the circumstances of his death in what we legally know as a dying declaration.
What is a dying declaration?
The death of William Woodcock was sudden, yet expected. In 1788 his wife Silvia had been bludgeoned and left to die in a ditch. Early the following year, on trial in the Old Bailey for her murder, William was sentenced to death. On the 19th of January, a Monday, he was taken to “Tyburn’s tree”, in the middle of London, and, with a scarcely audible snap of the neck and a sigh or a moan from the milling crowd, he was hanged.
We know more about William Woodcock than most who met this fate, because he left behind an unwitting legacy. The King v Woodcock is one of the seminal cases in the development of the law of evidence, for the only evidence of what happened to Silvia came from Silvia herself.
While being cared for in the Chelsea Poorhouse, she recovered her senses and lingered for two days before she died. A Magistrate came to her side, and acting in an informal capacity, took down her story of the events that befell her that night.
Woodcock established an exception to the hearsay rule in the case of a dying declaration by a person who has received a fatal blow;
“they are declarations made in extremity, when the party is at the point of death, and when the hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice”.
As per the decision above, a dying declaration is, therefore, an accepted and applicable exception to the hearsay rule. However, it must meet a couple of qualifications for it to be applied.
Section 59 of the Evidence Act, Chapter 6 of the Laws of Uganda, provides that whether it refers to a fact which could be seen, heard, perceived, or if it refers to opinion oral evidence, which what a dying declaration also is, must be direct.
Case law has detailed itself on dying declarations as well. In Ajioni Manase v Uganda (Criminal Appeal No. 32 of 2000), it was decided that a dying declaration must be complete and corroborated. In another case, that of Kasaija Emmanuel (Criminal Appeal No. 6 of 2003), it was held that it must be credible and reliable.
…and their application
In the Kanyamunyu-Akena case, which has been widely covered by all forms of media, for various reasons, we have learnt that most of the crucial evidence, for the prosecution, has been “erased”. A gun, the weapon of murder, is/was missing from the crime scene, and there are no known witnesses, save for Mr. Kanyamunyu’s girlfriend, who was in the same vehicle with him.
The only piece of this puzzle, one which might point to the directness of the dying declaration, as was in Woodcock, is what the deceased’s family has handed in to police as an audio-visual recording of his story of the events that befell him.
Thankfully, the suspects have been charged and remanded, and, hopefully, their defence will be justly weighed against the deceased’s own declaration. It is our fervent hope that the Court will remember to be careful enough in appreciating fully the evidentially ambit the accused persons face, its admissibility, and, importantly, the interest of justice.
BY ALEXANDER TWINOKWESIGA
This article appears in our weekly digital law magazine, The Deuteronomy, Vol 9, Issue 1 of December 2nd, 2016 under the title, “Dying Declaration: When the dead have a say in the matter”
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