Kalungi: To change or not to change plea

Did you know? Had the magistrate proceeded with recording Kalungi’s first plea, there was a high likelihood of the whole trial being declared a nullity. What the change of plea in the Kalungi case means is that it is going to be a full trial with both parties calling evidence/witnesses where possible

On January 7, Adam Kalungi, the alleged boyfriend of the late Butaleja MP, Cerinah Nebanda, was charged with inter alia, the offence of manslaughter before the Chief Magistrates Court, Makindye and he pleaded guilty. The trial magistrate declined to enter his plea and advised that he seeks legal representation. He was remanded and subsequently produced in court on January 8 with a team of lawyers. He subsequently changed his plea from guilty to not guilty, which has caused a brouhaha in a large section of the largely non-court users.

A plea is simply an answer or response to a formal accusation. There are many types of pleas but the most common in our criminal justice system is the plea of guilty (an admission), or the plea of not guilty (denial of a charge). When an accused person appears before court, the offence(s) and its particulars are read and explained, and is called upon to take plea. They may plead guilty or not guilty and court records accordingly.

An accused person can also plead that he/she was tried for the instant offence and either convicted or acquitted, technically summarised as autrefois acquit or autrefois convict. An accused may also plead that he/she benefitted from the prerogative of mercy as enunciated in Article 121 of the Constitution by way of pardon, remission or commutation.

Change in plea is quite common and the public need not be unduly excited about it. The Adam Kalungi case is only evoking focus because of the extensive media attention it has attracted. Legally, an accused can, for justifiable reasons, oscillate from one plea to another until they are sentenced. In fact, in very compelling and exceptional circumstances, a change of plea can be entertained even after conviction e.g. failing to observe or adhere to essential procedural and constitutional steps/guidelines during a trial.

This flexibility is largely premised on the constitutional foundation of presumption of innocence and the dictates of a fair trial as adumbrated in Article 28 of the Constitution.
In the Adam Kalungi case, the trial magistrate was very alive to the procedural requirements and she took the right step not to initially accept/record his plea of guilty.

It was a travesty for the prosecution/state not to have availed him with a lawyer at the onset because Article 28(3)e is to the effect that a person accused of an offence that carries a maximum sentence of death or life imprisonment is entitled to legal representation at the expense of the state.

Had the magistrate proceeded with recording Kalungi’s plea, there was a high likelihood of the whole trial being declared a nullity on appeal for omitting to adhere to an essential constitutional step especially to such an unrepresented person.

What the change of plea in the Kalungi case means is that it is going to be a full trial with both parties calling evidence/witnesses where possible. When one pleads guilty, the case and particulars are read again to him/her, and if they are not disputed, is immediately convicted and sentenced. This can take place within hours if the magistrate so wishes and exercises readiness to do so. Where an accused pleads not guilty, more time is needed to conduct and accomplish the trial, and this usually takes months or even years given the human resource limitations and case backlog in our judicial system.

The writer is a lawyer and President, Justice Forum (JEEMA) Party.

editorial@ug.nationmedia.com