Introduction
The Ugandan Evidence Act Cap 6 (hereinafter ‘the Act’), originally enacted in 1909, provides the statutory framework governing the admissibility of evidence in Ugandan courts. While it has served as a cornerstone of legal procedure for over a century, its colonial origins are apparent in several key areas. Many of its provisions are modelled on the Indian Evidence Act of 1872, which itself codified nineteenth-century English common law principles. Consequently, certain rules, particularly those concerning hearsay, character evidence, and confessions, can appear rigid and out of step with modern jurisprudential developments aimed at achieving substantive justice.
This paper will argue that specific areas within the Act are in need of reform to better align with the principles of fairness, reliability, and efficiency enshrined in the 1995 Constitution of the Republic of Uganda. Specifically, it will contend that the exclusionary rule against hearsay is overly rigid and can lead to the exclusion of reliable evidence, and the rules on character evidence are complex and can operate unfairly against an accused person. After analysing these deficiencies with reference to case law, this paper will propose a draft amendment to the Act to address the most pressing issue: the inflexible nature of the hearsay rule.
The Hearsay Rule: A Call for Flexibility
The rule against hearsay is a fundamental principle of the common law of evidence, and it is codified in the Ugandan Evidence Act. Section 59 of the Act states that oral evidence must be direct, meaning a witness can only testify to what they perceived with their own senses. Section 58 implicitly defines hearsay by excluding statements made by persons who are not called as witnesses. The rationale for this exclusion is that such out-of-court statements are not made under oath and are not subject to cross-examination, making their reliability questionable (Cross & Tapper, 2010).
While the Act provides for several exceptions to this rule in section 30, such as dying declarations and statements made in the ordinary course of business, the list is closed and the exceptions are narrowly construed. This rigidity can lead to injustice where reliable and probative evidence is rendered inadmissible simply because it does not fit neatly into a pre-defined exception. The case of Uganda v Kisegerwa [1978] HCB 137 illustrates this challenge, where the court had to carefully consider whether a statement made by a deceased person could be admitted. If a piece of evidence is demonstrably reliable but falls outside the statutory exceptions, the court has no discretion to admit it. This contrasts sharply with developments in other common law jurisdictions. For example, England and Wales, through the Criminal Justice Act 2003, has moved away from a strict exclusionary rule towards a more inclusionary approach, allowing for the admission of hearsay where it is in the interests of justice, subject to judicial safeguards.
The Ugandan judiciary has at times acknowledged the difficulties posed by the strict rule. In Twaha Ali v Uganda (Criminal Appeal No. 23 of 1992), the court grappled with the application of the res gestae exception, demonstrating the complex legal analysis required to fit evidence into the narrow common law exceptions preserved by the Act. A more principled and flexible approach would empower trial judges to admit hearsay evidence that is clearly reliable, having regard to factors such as the circumstances in which the statement was made, any corroborating evidence, and the importance of the evidence to a matter in issue. This would prevent the exclusion of crucial evidence and better serve the ultimate goal of determining the truth.
The Complexity of Character Evidence
The rules governing the admissibility of character evidence, found in sections 50 to 53 of the Act, are another area ripe for reform. The general principle is that the bad character of an accused is not admissible to prove their propensity to commit the offence charged (s.52). This is a vital protection against prejudicial reasoning, ensuring that an accused is tried for the specific offence, not for their past misconduct.
However, the protection, often referred to as the ‘shield’, is fragile. Under section 52, an accused person loses their shield against the admission of their bad character if they attempt to establish their own good character, or if they attack the character of the prosecution or its witnesses. This can place the accused in a difficult position. For instance, an accused with a previous conviction who alleges that a prosecution witness is lying may be forced to choose between challenging the witness’s credibility (a key part of their defence) and risking the jury hearing about their own past. This was the central problem in the English case of Maxwell v DPP [1935] AC 309, a case of high persuasive authority in Uganda, which highlighted the potential for prejudice.
The current all-or-nothing approach lacks nuance. Reform could introduce a more balanced test, requiring the court to weigh the probative value of the bad character evidence against its prejudicial effect before admitting it. This would allow an accused to mount a robust defence without automatically triggering the admission of a damaging criminal record. A modernised framework could provide clearer guidance, similar to the "gateway" system in England's Criminal Justice Act 2003, which specifies the limited circumstances in which bad character evidence is admissible and retains judicial discretion to exclude it where its admission would have an adverse effect on the fairness of the proceedings.
Confessions: Ensuring Voluntariness
The law on confessions, primarily governed by sections 23 to 28 of the Act, rightly focuses on the principle of voluntariness. A confession made as a result of inducement, threat, or promise is inadmissible (s.24). This rule is buttressed by Article 28 of the Constitution, which guarantees the right to a fair hearing. The Supreme Court of Uganda has repeatedly affirmed this principle, for example in Festo Androa Asenua & Anor v Uganda [1998] UGSC 1, where it was held that a confession must be proved to have been made voluntarily.
However, a significant practical problem remains: disputes over what occurred during police interrogation are common. An accused may allege torture or coercion, while the police deny it, leaving the court to decide on credibility with little independent evidence. A key area for reform, therefore, is not necessarily the legal principle itself, but the procedure for recording confessions. Amending the Act to mandate the audio or, preferably, video recording of all police interviews and confessions in serious criminal cases would provide an objective record. This would deter police misconduct, protect suspects from coercion, and drastically reduce the time spent in voir dire (trial within a trial) hearings to determine admissibility. Such a reform would enhance the integrity of the criminal justice system and provide greater protection for the constitutional rights of the accused.
Proposed Statutory Reform: Amending the Hearsay Rule
The most urgent and impactful reform would be to modernise the rule against hearsay. The current rigid structure is ill-suited to the complexities of modern litigation. A reform should not abolish the rule but should introduce a discretionary gateway for the admission of reliable hearsay evidence that is otherwise excluded. The following draft text is proposed for incorporation into the Evidence Act Cap 6.
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Draft Text for Incorporation into the Evidence Act Cap 6
Section 30A. Admissibility of hearsay evidence in the interests of justice.
(1) In any proceedings, a statement not otherwise admissible as evidence may be admitted as evidence of any matter stated if— (a) the court is satisfied that it is in the interests of justice for it to be admissible; and (b) the person who made the statement is unavailable to attend as a witness, or it would not be reasonably practicable to secure his or her attendance.
(2) In deciding whether it is in the interests of justice to admit a statement under this section, the court must have regard to the following factors, among any others it considers relevant— (a) the probative value of the statement in relation to a matter in issue in the proceedings; (b) what other evidence has been, or can be, given on the matter; (c) the circumstances in which the statement was made and its apparent reliability; (d) any risk that its admission or exclusion will result in unfairness to any party, particularly the accused in criminal proceedings; (e) the difficulty of challenging the statement; and (f) the special measures that may be available to permit the maker of the statement to give evidence.
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This proposed amendment would provide a safety valve, allowing judges to admit compelling hearsay evidence where it is fair and just to do so. It guides judicial discretion by listing key factors, balancing the need for reliable evidence with the protection of the accused's right to a fair trial.
Conclusion
The Ugandan Evidence Act Cap 6 has provided a durable, if dated, framework for legal proceedings. However, to ensure that the law of evidence facilitates, rather than hinders, the pursuit of justice, reform is necessary. The strict exclusionary rule against hearsay, the complex rules on character evidence, and the procedural gaps in the recording of confessions are all areas that merit legislative attention. In particular, introducing a discretionary power for courts to admit reliable hearsay evidence would be a significant step towards modernising Ugandan evidence law, ensuring that courts have access to all relevant and reliable material to determine the truth, thereby promoting fairness and upholding the principles of the Constitution.
References
Cross, R. and Tapper, C. (2010) Cross & Tapper on Evidence. 12th edn. Oxford: Oxford University Press.
Festo Androa Asenua & Anor v Uganda [1998] UGSC 1 (Supreme Court of Uganda).
Maxwell v DPP [1935] AC 309.
Twaha Ali v Uganda (Criminal Appeal No. 23 of 1992) (Supreme Court of Uganda).
Uganda v Kisegerwa [1978] HCB 137.
Legislation
Constitution of the Republic of Uganda, 1995.
Evidence Act, Cap 6, Laws of Uganda 2000.
Criminal Justice Act 2003 (United Kingdom).
