1.The accused raised a preliminary objection dated April 4, 2023 in terms that –
2.It is common ground that the proposed witness is the husband of the accused and that the deceased in this case is their child. See evidence of the area Chief PW1 and Accused’s daughter PW2.
3.With respect, it would appear that the submission by Counsel for the accused that a spouse is only compellable witness for the defence is faulty. Counsel writes –
4.This submission by the defence fails to distinguish between the compellability of witnesses under sub-section (2) and (3) of the Evidence Act. Indeed, Counsel for the Accused then proceed to quote section 127 (2) in support of his submission, ignoring completely the provisions of section 127 (3) of the Evidence Act. The two subsections make provisions for the compellability of accused’s spouse by only the defence on the one hand, and by the both Prosecution and the Defence on the other, in different circumstances as follows:
5.It is not correct that the compellability of a witness under section 127 (3) is only relevant to the case for the defence. Under section 127 (2) a spouse is at all times a compellable witness for the defence except where the circumstances set out in that subsection apply. The right to compellability is available to both the Prosecution and the Defence in the circumstances stated in the sub-section (3).
6.Here the accused’s spouse is compellable witness is under section 127 (3) of the Evidence Act a compellable witness for both the prosecution and the Defence as the offence relates to a child of both of them. The spouse of the accused is in this case involving the death of their child a compellable witness under section 127 (3) of the evidence Act. What the Prosecution may, and needs to consider, is whether the husband’s evidence is necessary to secure a conviction against the wife and, if not, the Prosecution should omit him in the interests of maintaining marital harmony between the two spouses, which evidence so far suggests exist.
7.Accordingly, for the reasons set out above, the court does not allow the application by preliminary objection dated 4/10/2023, and the same is declined.
8.The case shall proceed to trial and the proposed witness Basilio Ikunda shall be available to testify for the Prosecution, unless the Prosecutor in his discretion under section 143 of the Evidence Act determines otherwise.Order accordingly.