Introduction
The Ugandan Evidence Act Cap 6, enacted in 1909, has long been the cornerstone of the law of evidence in Uganda. Its origins in the Indian Evidence Act 1872 mean that it is a product of colonial legal transplantation and reflects the common law principles of its time. While its endurance is a testament to its foundational strength, several of its provisions are now outdated and struggle to meet the demands of a modern legal system committed to the principles of fairness and justice enshrined in the 1995 Constitution of the Republic of Uganda. This essay will argue that significant reforms are necessary across several key topics within the Act: relevance and admissibility, opinion evidence, hearsay, confessions, and character evidence. By examining the shortcomings of the current law through relevant case law, this essay will propose specific and appropriate textual amendments to the Act to enhance clarity, fairness, and efficiency in the administration of justice.
Relevance and Admissibility
The basic principle of the Evidence Act is that only relevant evidence is admissible. Sections 5 to 16 of the Act lay out the framework for what constitutes a relevant fact. One of the most challenging areas within this framework is the doctrine of res gestae, which allows for the admission of certain statements made contemporaneously with an event. The Ugandan courts have often interpreted this doctrine very strictly. For example, in R v. Kurji (1940) 2 EACA 58, a statement made by the deceased victim a short while after being stabbed was held to be inadmissible because it was not considered to be sufficiently contemporaneous with the event itself to be part of the transaction. This strict approach can lead to the exclusion of valuable and reliable evidence simply because it falls slightly outside the immediate timeframe of the main event.
This rigidity fails to account for the psychological realities of traumatic events, where a person's statement a few moments after an incident may be just as spontaneous and reliable as one made during it. The law should be more flexible to allow judges to consider the specific circumstances of each case.
Proposed Reform
To address this, a new section could be added to the Act to provide a more modern and flexible approach to res gestae.
Proposed Text:
> "A statement made by a person, whether orally, in writing, or by conduct, shall be admissible as evidence of any matter stated if: > (a) the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded; and > (b) the statement related to that event and was made at or about the time of the event."
This proposed text moves the focus from strict contemporaneity to the psychological state of the person making the statement, which is a more reliable indicator of the statement's truthfulness.
Opinion Evidence
The general rule, as established in common law and reflected in the Act, is that the opinion of a witness is irrelevant and inadmissible. The primary exceptions are for the opinions of experts under section 43 and the opinions of laypersons on specific matters like handwriting or relationship under sections 45-48. A significant problem with the current law on expert opinion is the lack of a clear definition of an 'expert'. The Act simply states that an expert is a person "specially skilled" in a particular field. This ambiguity has left the determination of expertise largely to judicial discretion, which can be inconsistent. The case of Mukombe v Uganda [1992-93] HCB 46 showed the court accepting the evidence of a police officer on the age of a victim based on his experience, but in an era of rapidly advancing forensic science, a more rigorous standard is required.
Proposed Reform
The Act should be amended to provide a clearer statutory test for who qualifies as an expert, guiding the court's discretion.
Proposed Text (as an amendment to Section 43):
> "(2) A person shall be considered 'specially skilled' for the purposes of this section if they have acquired skill or knowledge in the relevant field through formal study, training, experience, or a combination thereof, and this skill or knowledge is likely to be outside the experience and knowledge of the court."
This amendment would provide a clearer, more inclusive definition that acknowledges expertise gained through practical experience as well as formal education, while ensuring the expert's opinion provides genuine assistance to the court.
Hearsay
The rule against hearsay, which prevents the admission of out-of-court statements to prove the truth of the matter asserted, is a fundamental but often criticised rule of evidence. Section 59 of the Act provides that oral evidence must be direct. While the Act provides several exceptions, most notably for dying declarations in section 30(a), the rule remains rigid and can lead to the exclusion of reliable and crucial evidence. In Tenywa v Uganda [1997] HCB 1, the Court of Appeal confirmed that evidence of what a witness was told by another person is inadmissible hearsay. This absolute prohibition can obstruct justice, particularly in cases where the original maker of the statement is unavailable to testify for reasons such as death or fear. The current list of exceptions is closed and does not allow for judicial flexibility.
Proposed Reform
The most necessary reform is to grant courts a residual discretion to admit hearsay evidence where it is in the interests of justice to do so. This would allow for flexibility while still guarding against the admission of unreliable evidence.
Proposed Text:
> "Notwithstanding section 59, a statement which is otherwise inadmissible as hearsay may be admitted if the court is satisfied that: > (a) it is in the interests of justice for the statement to be admitted, having regard to its probative value and its reliability; > (b) the maker of the statement is unavailable to testify; and > (c) the admission of the statement would not be prejudicial to the fairness of the proceedings."
This would bring Ugandan law more in line with modern evidence regimes that recognise the need for a safety valve to the strictness of the hearsay rule.
Confessions
Sections 24 to 26 of the Evidence Act govern the admissibility of confessions, making a confession inadmissible if it was caused by any inducement, threat, or promise. While this provides a basic protection, it has proven insufficient to deal with the pervasive issue of confessions obtained through torture and oppression, which is explicitly prohibited by Article 24 of the Constitution. The landmark decision in Uganda v. Ssewankambo & Anor [2003] UGHC 1 confirmed that a confession obtained through torture is unconstitutional and therefore inadmissible. However, the Evidence Act itself does not explicitly reflect this strong constitutional protection or the standards set out in Uganda’s Prevention and Prohibition of Torture Act, 2012.
Proposed Reform
The Evidence Act must be updated to align directly with Uganda's constitutional and statutory framework against torture.
Proposed Text (to replace Section 24):
> "A confession made by an accused person is inadmissible in a criminal proceeding if it is proved to the satisfaction of the court that the confession was obtained: > (a) by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority; or > (b) through the use of torture, cruel, inhuman or degrading treatment or punishment as defined by the Constitution and the Prevention and Prohibition of Torture Act, 2012."
This amendment would make the rule on confessions clearer and stronger, leaving no doubt that any evidence obtained through torture is automatically inadmissible.
Character Evidence
The rules on character evidence, found in sections 50-53, are complex and can be highly prejudicial to an accused person. Section 52 makes an accused person’s good character relevant, but section 53 states that an accused’s bad character is generally irrelevant unless evidence of good character has been given. This 'tit-for-tat' approach can deter an accused from raising their good character for fear of the prosecution introducing prejudicial evidence of their past misconduct. The key issue is that evidence of bad character often carries a risk of prejudice that far outweighs its actual probative value. A judge or magistrate may be improperly influenced to convict based on the accused’s past, rather than on the evidence related to the specific charge.
Proposed Reform
The law should be reformed to introduce a clear balancing test, requiring the judge to weigh the probative value of bad character evidence against its prejudicial effect before it can be admitted.
Proposed Text (as a new subsection to Section 53):
> "(2) Notwithstanding subsection (1), evidence of the bad character of an accused person shall not be admitted if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. > (3) In considering whether to admit such evidence, the court must have regard to the probative value of the evidence in relation to an issue in the proceedings which is of substantial importance."
This reform would provide a crucial safeguard, ensuring that evidence of an accused's past is only used where it is genuinely helpful in deciding the case, not simply to prejudice the court against them.
Conclusion
The Evidence Act Cap 6 has provided a stable foundation for the law of evidence in Uganda for over a century. However, it is a document of its time, and its provisions have not kept pace with legal, social, and constitutional developments. The current rules on res gestae, expert opinion, hearsay, confessions, and character evidence all contain elements of rigidity, ambiguity, or potential for unfairness. The reforms proposed in this essay, including creating a more flexible res gestae rule, defining expertise, introducing a judicial discretion for hearsay, explicitly banning confessions obtained by torture, and applying a balancing test for character evidence, are necessary steps. Modernising the Act is not about discarding its common law heritage, but about refining it to better serve the constitutional promise of a fair and just legal system for all Ugandans.
References
Cases
- Mukombe v Uganda [1992-93] HCB 46
- R v. Kurji (1940) 2 EACA 58
- Tenywa v Uganda [1997] HCB 1
- Uganda v. Ssewankambo & Anor [2003] UGHC 1
Legislation
- Constitution of the Republic of Uganda, 1995
- Evidence Act, Cap 6 (Laws of Uganda)
- Prevention and Prohibition of Torture Act, 2012 (Act No. 3 of 2012) (Uganda)
