Lawyers should be armed with words, not swords

By Steven Masiga

Lawyers across the world are trained to tear down their adversarial opponents using words—not swords. In making court arguments, advocates rely on statutory law, case law, and legal doctrines to challenge their opponents, not brute force.

One of the most fundamental legal principles is the presumption of innocence. In Uganda, Article 28(3)(a) of the Constitution shields accused persons from criminal liability until proven otherwise. The doctrine of presumption of innocence rests on the legal inference that most people are not criminals.

As the English jurist William Blackstone famously stated in his Commentaries on the Laws of England, “It is better that ninety-nine guilty persons escape than that one innocent suffer.”

Uganda’s legal framework includes several statutes that outlaw torture against accused persons. Article 24 of the Constitution explicitly prohibits such acts and even criminalizes any violations of that provision. The rationale behind outlawing torture, particularly in detention or pre-trial custody, is clear: what if the accused is later found innocent—how can one justify the pain that was inflicted?

In all criminal matters, the burden of proof rests with the state. In Uganda, the state, also known as the Republic, is the principal complainant in criminal cases and bears the responsibility of proving allegations beyond reasonable doubt. The accused is not obligated to incriminate themselves or prove their innocence.

The Evidence Act, Cap 6, in Sections 101, 105, and 106, clearly states that those who allege must provide evidence. This principle is further reinforced by international law, including the Rome Statute of the International Criminal Court, Article 66(1)(2)(3), which places the burden of proof on the prosecution, not the defendant.

The reason the state is designated as the main complainant in criminal proceedings is rooted in its role as the lawmaker and protector of citizens and their property. Article 212(a–d) of the Ugandan Constitution mandates the police to ensure public safety and property protection. This mandate is echoed in the Police Act, Cap 303.

This legal principle is not new. Over 2,000 years ago, the Digest of Justinian articulated the Latin maxim “Ei incumbit probatio qui dicit, non qui negat”, meaning, “The burden of proof lies on him who asserts, not on him who denies.” Thus, every accused person must be treated as innocent until proven guilty in court. Subjecting them to torture before a conviction amounts to cruel injustice.

The world has witnessed tragic consequences when this principle is ignored. In 1944, a 12-year-old boy in the United States was sentenced to death and electrocuted, only for the court to discover in 2016 that he was innocent. Similarly, Galileo Galilei was sentenced to death by Roman authorities in the 17th century for claiming that the Earth revolved around the Sun—a truth only acknowledged in 1992, when the Catholic Church posthumously apologized.

Lawyers and judges should put down their swords and instead use words, reasoning, and legal tools to deliver justice. In Uganda, Article 128 of the Constitution ensures the independence of courts, and no authority has the power to dictate how judicial officers carry out their duties. Whether this independence applies equally to military courts remains a subject worthy of legal exploration.

As a country, we must constantly ask: “What does the law say?” if we are to grow into a society that respects law enforcement and the rule of law. Let us all commit to obeying our domestic laws to uphold what legal minds like A.V. Dicey stood for—the rule of law, ensuring that all our actions remain within the legal framework.

Criminal law must never operate retrospectively. If it ever did, it would become unconstitutional and subject to removal from the Constitution.

The writer is a Master’s student based in Mbale