Supreme Court Upholds Conviction Based on Voluntary Confession, Dismisses Torture Allegations as Afterthought

Waboga David
Jul 7
4 min read

Coram

Tibatemwa-Ekirikubinza, JSC, Tuhaise, JSC, Chibita, JSC, Musota, JSC, Monica K. Mugenyi, JSC

Case

Nabongho Ibrahim v Uganda, Criminal Appeal No. 84 of 2021 (Judgment dated 4 July 2025)

Introduction

In criminal proceedings, where the voluntariness of a confession is contested, the law requires the court to conduct a trial within a trial, a special evidentiary hearing held to determine whether the confession was made freely and voluntarily.

During this procedure, the prosecution bears the burden of proving, beyond reasonable doubt, that the confession was not obtained through force, torture, threat, inducement, or promise, as prohibited under Section 24 of the Evidence Act Cap 8. The accused is afforded an opportunity to present evidence in objection.

A charge and caution statement, as was central in this case, refers to a written confession or admission made by an accused person after being formally informed of the charge against them and cautioned that they have a right to remain silent and that anything they say may be used in evidence against them. It is only admissible if given voluntarily and with full knowledge of legal rights.

In the recent case of Nabongho Ibrahim v Uganda, the Supreme Court upheld the findings of both the trial and appellate courts that this procedure was properly conducted. The trial judge held a trial within a trial, examined medical and testimonial evidence, and found no indication of torture or coercion. The Court emphasized that because the allegation of torture was not raised at trial, it could not be introduced for the first time on second appeal.

📝 Facts

The Appellant, Nabongho Ibrahim, was convicted of murder and aggravated robbery arising from the killing of a boda boda rider in Namutumba District in 2010. The conviction was based, inter alia, on a charge and caution statement he made, which the trial court found to be voluntary after conducting a trial within a trial.

The Court of Appeal upheld the conviction but reduced the sentence.

In the second appeal to the Supreme Court, the Appellant claimed the confession was obtained under torture and should not have been admitted.

⚖️ Issues

Whether the charge and caution statement was admissible in light of allegations of torture.
Scope of the Supreme Court’s jurisdiction in a second appeal.
Admission of new evidence at appellate stage.

⚖️ Holding & Reasoning

The Supreme Court dismissed the second appeal and upheld the conviction of the Appellant, finding no merit in his challenge to the admissibility of the charge and caution statement. The Court made several key determinations:

1. Jurisdiction of the Supreme Court in Second Appeals

The Court reaffirmed that its jurisdiction in second appeals is limited to questions of law or mixed questions of law and fact already addressed in the first appellate court. It cited Kifamunte Henry v Uganda (SCCA No. 10 of 1997) for the principle that the Supreme Court does not re-evaluate evidence unless it is shown that the first appellate court failed in its duty to do so. The Court held that:

“This Court, being a second appellate court, is not bound to re-evaluate the evidence on record unless it is established that the first appellate court did not re-evaluate the evidence.”

2. Voluntariness of the Charge and Caution Statement

The central issue was whether the charge and caution statement, in which the Appellant admitted to the murder and robbery, had been made voluntarily. The Appellant argued that he had been tortured, and that the statement should not have been admitted.

However, the Court observed that:

The trial court conducted a trial within a trial to determine the admissibility of the statement.
The trial judge found that the statement was made voluntarily.
A medical examination report (Exhibit P2A) showed the Appellant was of normal mental status and had no physical injuries.
The Appellant's trial defence was not that he had been tortured, but rather that he had never made the statement at all, meaning the allegation of torture was inconsistent and raised only on appeal.

The Court concluded that the claim of torture was an afterthought, stating:

“We find it to be an afterthought that the Appellant is raising allegations of torture now on appeal so as to defeat the findings of the trial Court. In effect, for us, there is no valid challenge to the voluntariness of the relevant charge and caution statement, and we uphold it.”

3. Impropriety of Raising New Issues on Appeal

The Court emphasized that allegations not raised at trial or in the first appeal cannot be introduced at the second appellate stage. Citing Nalongo Josephine Nazziwa v Uganda and Namisango v Galiwango, the Court stressed that:

Grounds of appeal must arise from the record and decisions of the lower courts.
Raising fresh factual allegations at the Supreme Court undermines the judicial process and the right to fair trial.

4. Proper Conduct of the Trial within a Trial

The Court noted that the trial court had followed the proper legal procedure:

The accused was cautioned and informed of his right to remain silent.
The prosecution led evidence (from Detective Inspector Muwanika) to show the accused was in a normal state and made the statement voluntarily.
The defence had the opportunity to contest the statement, and the trial court was satisfied of its admissibility.

🧾 Conclusion

The Supreme Court held that:

The Court of Appeal had properly re-evaluated the evidence and correctly upheld the trial court’s findings.
There was no valid basis to fault the admission of the confession.
The allegation of torture lacked evidentiary support and was procedurally improper.
The second appeal was without merit and was accordingly dismissed.