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Opinions of Assessors in Criminal Trials in East Africa as to Native Custom

Published online by Cambridge University Press:  28 July 2009

John Gray
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Extract

In Tanganyika, Uganda, and Zanzibar all trials in the High Court take place with the aid of Assessors. The same rule applies in Kenya, except in the case of Europeans, when the trial is before a judge and jury. In trials with the aid of Assessors, as in the case of trial by jury, at the conclusion of the evidence and the addresses on behalf of the prosecution and the defence the Judge may sum up to the Assessors the evidence for the prosecution and the defence. In the relevant section in all four Criminal Procedure Codes the word preceding the words “sum up” is “may”. That is to say, there is no statutory obligation on the trial Judge to sum up the evidence, but, as said in Washington v. R. (1954), 21 E.A.C.A. 392, it is a very sound practice which is almost invariably followed by Judges in East African territories except in the very simplest cases. Furthermore, as held in R. v. Lute (1934), 1 E.A.C.A. 106, in all but the clearest cases, it is desirable that the Judge should make a note of the points put to the Assessors in such summing up, and the evidence which he has stated as supporting or otherwise each point.

Type
Articles
Information
Journal of African Law , Volume 2 , Issue 1 , Spring 1958 , pp. 5 - 18
Copyright
Copyright © School of Oriental and African Studies 1958

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References

2 Indian Evidence Act, s. 176, which applies in Kenya and Tanganyika and has its counterparts in the local legislation of Uganda and Zanzibar.

page 7 note 1 See R. v. Fabiano Kinene (1941), 8 E.A.C.A. 96.

page 8 note 1 R. v. Gusambizi Wesonga (1948), 15 E.A.C.A. 65.

page 10 note 1 R. v. Taylor, (1950) 2 All E.R. 170; and Joseph Kabuiv. R. (1954), 21 E.A.C.A. 261.

page 15 note 1 R. v. Gusambizi Wesonga {supra).

page 15 note 2 R. v. Makanga (1937), 4 E.A.C.A. 71.

page 15 note 3 Indian Evidence Act, s. 60.

page 18 bote 1 For further discussion of cognate problems in the Union and in other parts of British Africa respectively, the reader may care to refer to:

A. J. Kerr, “The Application of Native Law in the Supreme Court”, (1957) 74 S.A.L.J. 313;

A. N. Allott, “ The Judicial Ascertainment of Customary Law in British Africa”, (1957) M.L.R. 244.—Editor.