Hearsay evidence in Uganda: Understanding its meaning, admissibility and probative value

AuthorJamil Ddamulira Mujuzi
Published date01 October 2020
Date01 October 2020
DOIhttp://doi.org/10.1177/1365712720960241
Subject MatterArticles
EPJ960241 418..439 Article
The International Journal of
Evidence & Proof
Hearsay evidence in Uganda:
2020, Vol. 24(4) 418–439
ª The Author(s) 2020
Understanding its meaning,
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admissibility and
DOI: 10.1177/1365712720960241
journals.sagepub.com/home/epj
probative value
Jamil Ddamulira Mujuzi
Faculty of Law, University of the Western Cape, South Africa
Abstract
In Uganda legislation requires witnesses to adduce direct evidence in court. However, this may
not be possible in all cases and the law provides for circumstances in which hearsay may be
admissible. The Evidence Act is the main piece of legislation which governs the issue evidence. In
this article, the author relied on 539 cases in which the Ugandan High Court, Court of Appeal and
Supreme Court have dealt with hearsay evidence to establish the principles which these courts
have developed on this issue. This case law shows, inter alia, that there are three major issues
that Ugandan courts are still grappling with when it comes to hearsay evidence: the definition of
hearsay; the admissibility of hearsay (exceptions to the hearsay rule) and the probative value of
hearsay evidence. The author suggests ways in which courts can handle these issues.
Keywords
exceptions to the hearsay rule, hearsay evidence, hearsay rule, probative value, Uganda
Introduction
As is the case in many jurisdictions, in Uganda legislation requires witnesses to adduce direct evidence
in court. However, this may not be possible in all cases and legislation provides for circumstances in
which hearsay is admissible. The main piece of legislation which governs the issue of evidence in
Uganda is the Evidence Act.1 Section 59 of the Evidence Act provides for oral evidence and it is to
the effect that:
Oral evidence must, in all cases whatever, be direct; that is to say—(a) if it refers to a fact which could be
seen, it must be the evidence of a witness who says he or she saw it; (b) if it refers to a fact which could
1. Evidence Act, Cap. 43 (1909).
Corresponding author:
Jamil Ddamulira Mujuzi, Faculty of Law, University of the Western Cape, Private Box X17 Bellville Cape Town, 7535, South Africa.
E-mail: djmujuzi@gmail.com

Mujuzi
419
be heard, it must be the evidence of a witness who says he or she heard it; (c) if it refers to a fact which could
be perceived by any other sense, or in any other manner, it must be the evidence of a witness who says he or
she perceived it by that sense or in that manner; (d) if it refers to an opinion or to the grounds on which that
opinion is held, it must be the evidence of the person who holds that opinion on those grounds, except that—
the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which those
opinions are held, may be proved by the production of those treatises if the author is dead or cannot be found,
or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or
expense which the court regards as unreasonable; and (e) if oral evidence refers to the existence or condition
of any material thing other than a document, the court may, if it thinks fit, require the production of that
material thing for its inspection.
Although s. 59 of the Evidence Act does not mention hearsay evidence, Ugandan courts, including the
Supreme Court, have relied on s. 59 of the Evidence Act to hold that hearsay evidence is, as a general
rule, inadmissible. The purpose of s. 59 is to ensure that direct evidence, which is the best evidence, is
adduced in court.2 Section 59 also provides for very limited circumstances in which hearsay evidence is
admissible—when it comes to the opinions of experts expressed in a treatise. However, that is not the
only exception to the hearsay rule. As the discussion below shows, the Evidence Act provides for other
circumstances in which hearsay evidence is admissible.3 In this article, the author relied on 539 cases in
which the Ugandan High Court, Court of Appeal and Supreme Court have dealt with hearsay evidence to
establish the principles which these courts have developed on this issue.4 This case law shows, inter alia,
that there are three major issues that Ugandan courts are still grappling with when it comes to hearsay
evidence: the definition of hearsay; the admissibility of hearsay (exceptions to the hearsay rule) and the
probative value of hearsay evidence. With regard to the second and third issues, the most important
question is whether a court can rely on hearsay evidence exclusively or substantially as the basis of its
finding. In this context, the author discusses the exceptions to the hearsay rule which include those in the
Evidence Act (these include opinions of experts, confessions as hearsay, hearsay evidence of a victim in
sexual offences; and res gestae as hearsay) and exceptions which are provided for under other pieces of
legislation (for example, hearsay evidence in affidavits, including affidavits in winding up of companies,
and electronic evidence as hearsay). The author also deals with grounds for admitting hearsay evidence.
Based on this analysis, the author suggests a definition of hearsay evidence and also argues that a combined
reading of these cases shows that courts are increasingly gravitating towards relying substantially on
hearsay evidence in making their findings. The author also suggests ways in which courts can deal with the
grounds of admitting hearsay evidence. The author will start with the courts’ attempts to define hearsay.
Defining hearsay evidence
Unlike evidence pieces of legislation in some African countries such as Ghana5 and South Africa,6
which define hearsay evidence, the Ugandan Evidence Act does not define hearsay evidence. The results
are that there have been instances where courts have disagreed on whether the evidence in question
2. Okura & Anor v Umeme Ltd (Civil Suit No. 41 of 2016) [2019] UGHCCD 111 (2 May 2019) at 3.
3. Some of which, for example, under s. 20 of the Act on which there is no case law, will not be discussed.
4. The author inserted the word ‘hearsay’ in the search section of the database which hosts Ugandan case law (www.ulii.org) and
539 cases were found. Many cases repeated the same principle and were therefore not cited in this article. The search was
conducted from 4–9 June 2020 and from 25–27 August 2020.
5. Section 116(c) of the Evidence Act of 1975 (NRCD 323) defines hearsay evidence as ‘Evidence of a statement, other than a
statement made by a witness while testifying in the action at the trial, offered to prove the truth of the matter stated.’ Section 117
of the same Act provides that ‘hearsay evidence is not admissible except as otherwise provided by this decree or by any other
enactment or by agreement of the parties’. For a detailed discussion of the principles governing the admissibility of hearsay
evidence in Ghana, see Johnson v Republic (J3/3/2010) [2011] GHASC 12 (16 March 2011).
6. Section 3(4) of the Law of Evidence Amendment Act, Act 45 of 1988 defines hearsay evidence as ‘evidence, whether oral or in
writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence’.

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The International Journal of Evidence & Proof 24(4)
amounts to hearsay and courts have tried to define what amounts to hearsay. In the 1978 decision of
Clement Namulambo & Anor v Uganda7 the Supreme Court, the highest court in Uganda, relied on a
1972 decision of Privy Council (citing a 1956 decision of the English Court of Appeal) to describe
hearsay evidence in the following terms:
‘Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not
be hearsay. It is hearsay and inadmissible when the object of the evidence [is to establish the truth of what] is
contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence,
not the truth the statement but the fact it was made.’ It is true to say that a witness may give evidence of words
spoken by someone else not called as a witness if such words are relevant on the basis that they represent facts
just as any other action by a human being. The question of hearsay only arises when the words spoken are
relied on testimonially as establishing some fact narrated by the words.8
The above description has been followed by the High Court in many civil and criminal matters.9
However, there are cases in which some High Court judges have come up with their definitions or
descriptions of hearsay evidence which are slightly different from that of the Supreme Court. For
example, Uganda v Malishi & Anor,10 the High Court held that hearsay is ‘evidence of those who
relate, not what they know themselves, but what they have heard from others’.11 The High Court held in
Uganda v Dr Aggrey Kiyingi and 2 Others12 held that:
Hearsay consists of statement, which is direct or written by a person who is now not before Court, the purpose
of which is to prove the same that it was made or written. It is second hand evidence, which cannot be
subjected to cross-examination and therefore liable to fabrications.13
In Uganda v Bogere14 the High Court defined hearsay as ‘evidence which the witness is merely
reporting and not what he himself or herself saw or heard or came under the immediate observation of his
or her bodily senses, but what he or she learnt respecting the fact through the medium of a third
person’.15 In another case, the High Court held that evidence...

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