1.1.

Meaning of Conspiracy

According to Black’s Law Dictionary,1 conspiracy refers to an agreement by two or more persons
to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and (in
most States) action or conduct that furthers the agreement; a combination for an unlawful purpose.
The elements of conspiracy then, according to the definition given include an agreement between
two or more persons, the intention to commit an unlawful act or a lawful act in an unlawful manner
and the act that furthers the agreement. The quotation in the question as stated under the Penal
Code2, specifically, section 386 (2) that a husband and wife may be guilty of conspiring together
whether their marriage is monogamous or polygamous.

1.2. Meaning of Accessory after the fact

Section 387 (1) of the Penal Code3 defines accessory after the fact as a person who receives or
assist another who is, to his knowledge, commits an offence, in order to enable him to escape
punishment. By acting in concert with the perpetrator before or during the commission of a crime,
aiders and abettors and accessories before the fact help cause the crime and therefore are
punishable for the crime.4 An accessory after the fact, however, does not contribute to the
commission of the crime; such criminality is found in post-crime assistance. An accessory after
the fact impedes the apprehension, trial, or punishment of a felon.5 Unlike conspiracy, section 387
(2) of the Penal Code,6 states that, a wife and husband does not become accessories after the fact
to an offence of which they have committed the offence for assisting or receiving each other and
any other to whom they have taken part to, to escape punishment.

2.0. MAIN BODY

The two provisions, that is to say, section 386 (2) of the Penal Code7 and section 387 (2) of the
same do not go in parallel as when it comes to the offences that involve persons under the marriage
contract. They provide differently as to the difference of the elements of the said offences and the

1
2
[CAP. 16 R.E. 2002]
3
Ibid
4
Criminal Law and Procedure-An overview
5
Ibid
6
[CAP 16 Ibid]
7
Ibid
logic behind such inclusion into the offences and exclusion of some into the offences. Then, upon
deep discussing, the following are the elements of conspiracy.

2.1. Elements of Conspiracy

The elements or ingredients of conspiracy are exploited from the definition of the term itself. Every
legal term must be defined as to the elements that will suffice for one to establish that as an offence
or any other legal undertaking. Then, here below are the elements of Conspiracy as an offence to
be established when it is alleged to have been committed as between wife and husband.

2.1.1. There must be more than one or more persons.

The wife and husband are two distinct persons who, although by religious virtue, are termed as
one joint flesh. When it comes to legal context, the wife and husband are two distinct persons who
may join in any undertaking as whatever they will be planning. The criminal law, as under section
386 (2) of the Penal Code,8 establishes that, a husband and wife may be guilty of conspiring
together. This implies that, although they are married to each other, still once they commit any
offence under the presence and consent of each of them they will be guilty for engaging in such
commission. As to the applicability of Common Law in East Africa and other more, this element
was critically discussed in the Ugandan case of Ogodia & Erima v. Uganda,9 that ‘the evidence
was sufficient to justify the inference that the first appellant conspired with a person or persons
unknown to arrange for roadblock to arrest the Prime Minister.’ This case, in a nutshell, it was
about the two appellants who were convicted of conspiracy with the aim to effect unlawful purpose
namely to set up a road block and arrest the then prime minister Milton Obote. From that, the
element of conspiracy will be done with it.
2.1.2. There must be an agreement, which is unlawful. This is another element
of conspiracy as to which both persons are said to commit the same agreed offence may be
established. The agreement itself to commit an unlawful act or a lawful act in an unlawful manner
itself is sufficient to constitute the offence of conspiracy. The actus reus of conspiracy is
“agreement” mere knowledge of the plan is not sufficient nor the mere intention to achieve
unlawful object. This is according to the case of R v Gill.10 Nevertheless, because it is the

8
Ibid
9
[1967] E.A 137
10
(1993) 97 Cr App R 215 (CA).
agreement itself which amounts to the conspiracy, it does not matter if the acts actually carried out
differ from those agreed. As according to the case of R v Bolton,11 whereas the defendant was
charged with conspiracy to procure the execution of valuable securities by deception. The appeal
concerned the question whether it mattered that the defendant expected a cheque but in fact money
was transferred by electronic means. as it was cited by Molan.12 Then, as far as the work is
concerned, a husband and wife once makes an agreement to do an unlawful act or omission or a
lawful act in an unlawful manner will be guilty of conspiring together.

11
(1992) 94 Cr App R 74.
12
Molan, M., Cases and Materials in Criminal Law, 4th Ed.; Routledge-Cavendish Taylor and Francis Group, London.
2007.