{UAH} Dr. Kiyingi's Case Verdict - Stop The Distortions.
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Taking the prosecution evidence in this case in totality and the defence, which Dr Kiyingi raised, my mind is still left nagging whether he committed the alleged crime. The truthfulness of evidence of Musiime Pw1 and Nasuna Pw4 could not be fully established due to the sudden death of the late Atwine. The allegations that the accused persons acquired a number of telephone sets to coordinate the mission was not established by the prosecution to the required standard. This being a very serious crime, court ought to be certain beyond reasonable doubt. The law in its usual kindness in that it is safer to let 99 criminals free than to convict one innocent person. Experience abound where innocent people have been convicted recklessly. Although it was not his duty to prove his innocence, Dr Kiyingi made a formidable defence, which created a huge cloud of doubt on the prosecution case. He destroyed the allegation that during the eve of the murder he had sneaked into the country to bring in money to pay the killers. His explanation was that he had come to do his private business and to perform a social function. He had been invited as a guest of honour in a social function during the launching of Nagujja’s album where his company was the sponsor. I have no reason to disbelieve that explanation. If the accused had come to finance the said deal, at least some part of the money could have been recovered from one of the accused person because the deal was said to have involved a lot of money. However not even 100,000/ was recovered from the late Atwine or Charles Berwanaho, who was said to be the one who was charged with the distribution of the said funds.
The accused also explained that his return schedule had nothing to do with his guilt as that was a provisional booking. He also denied withdrawing electricity and security services from the house. In totality, the alibi which the accused was not bound to prove in law created a huge doubt in the prosecution case.
For the above reasons and others already outlined, I find this case has not been proved beyond reasonable doubt and I therefore would not feel comfortable to convict the accused. The evidence on record merely leaves the accused as a high suspect in the death of his wife. But the law is very straight on that point, suspicion however high it may be can never be a basis for conviction. See: R Vs Israel Epuku s/o of Achietu. The circumstantial evidence against the accused did not point irresistibly at the accused unlike in the Mureeba case (supra) where after the death of the deceased, the accused was heard rejoicing that the Malaya who was after her husband was now dead. And she proceeded to engage a witch doctor to help her out of trouble after the murder, but in the instant case, however the circumstantial evidence could not be tied around Dr Kiyingi. The evidence as pointed earlier left the accused as a high suspect. It was not water tight as required by law. Therefore having failed to prove this case to the required standard and this being a very serious crime, I would feel very uncomfortable in convicting the accused. In agreement with both assessors, I find Dr Kiyingi not guilty on the charge. He is accordingly acquitted
As far as the 2nd and 3rd accused persons are concerned, the prosecution relied on the same evidence to implicate both of them. With regard to the 2nd accused Charles Berwanaho prosecution further relied on his conduct of hiding from the police team upon realizing that he was under probe. In his defense, Charles Berwanaho denied ever hiding and told court that the previous night he had not evaded police arrest but had spent the night at the home of his mistress and that upon realizing that he was wanted by police, he decided to report himself to the police. Further defence was that during the material time he was carrying on a research on Aids, which was being funded by the Global Fund. At that time he was carrying research in Wakiso together with the late Atwine. He conceded that in the process he was in constant touch with the late Atwine on phone. He denied making an international call to Dr Kiyingi. The issue of international call between Dr Kiyingi and Charles Berwanaho was ruled out by the printouts, which the prosecution laid before this court. The accused also made a plausible account of his presence in Entebbe during the material time that he was there doing his research. Therefore, the possibility that the accused was in Entebbe, not on account of Dr Kiyingi could not be overruled.
As for the conduct of the accused that he evaded arrest I am satisfied with his explanation that during the night in question, he had slept at the home of his mistress in Kyambogo and only managed to return in the morning and when he learnt that he was wanted by police he reported himself to the police headquarters. I think it was irrational to make adverse inference on the conduct of the accused person because if at all he had intended to hide from the course of Justice he would not have reported himself to the police headquarters, purportedly to rescue his wife who had been arrested by the police . But I must also say that the conduct of arresting the wife of the accused who had nothing to do with this crime tantamounted to high handedness. A person should only be arrested for the crime he or she has personally committed but not for crime committed by another person, not even that of a spouse.
Another reason the accused related for the constant communication with the late Atwine was that they were brothers. The blood relationship between the two was even confirmed by the prosecution. The accused also testified that there was employee-employer relationship between him and Dr Kiyingi, which would prompt them to communicate to each other whenever it was necessary. All the reason above clearly set out the weakest link in the circumstantial evidence relied on by the prosecution because the links gave other co existing circumstances which would weaken or destroy the inference of guilt. See: WAIBI (supra). Furthermore, if it is true that the assailants had used Charles Berwanaho’s motor vehicle to the scene, why was it that the prosecution failed to identify its registration number? If the information from Atwine was to go by, then he should have been in a position to identify that motor vehicle because that was his brother’s vehicle.
Lastly, I have to deal with Bob Mugisha A3. Again as for the other two accused persons, the evidence against this accused is of a very weak nature. In addition to the witnesses whose evidence I have already analyzed in respect of the other two accused persons, the prosecution relied on the evidence of D/Sgt Turyasingura (PW5), and D/C Ahimbisibwe (PW6). The evidence of D/Sgt Turyasingura (PW5) was that the accused never revealed the names of the assailants a part from saying that he knew the killers. In the testimony of D/C Ahimbisibwe (PW6) the accused never made specific reference as to the doctor from a broad who was planning to kill his girlfriend. The evidence of the two witnesses were therefore speculative and needed very strong corroborative evidence which the prosecution failed to adduce.
All in all, the prosecution case failed the standard required in criminal justice, to prove this case beyond reasonable doubt. That standard is very high. The court is not bothered by the strength or weakness of the defence as was the point in PAULO OMALE -Vs- UGANDA CRIMINAL APPEAL No. 6 of 1977 where the defunct Court of Appeal for Appeal for Uganda had this to say:
The accused also explained that his return schedule had nothing to do with his guilt as that was a provisional booking. He also denied withdrawing electricity and security services from the house. In totality, the alibi which the accused was not bound to prove in law created a huge doubt in the prosecution case.
For the above reasons and others already outlined, I find this case has not been proved beyond reasonable doubt and I therefore would not feel comfortable to convict the accused. The evidence on record merely leaves the accused as a high suspect in the death of his wife. But the law is very straight on that point, suspicion however high it may be can never be a basis for conviction. See: R Vs Israel Epuku s/o of Achietu. The circumstantial evidence against the accused did not point irresistibly at the accused unlike in the Mureeba case (supra) where after the death of the deceased, the accused was heard rejoicing that the Malaya who was after her husband was now dead. And she proceeded to engage a witch doctor to help her out of trouble after the murder, but in the instant case, however the circumstantial evidence could not be tied around Dr Kiyingi. The evidence as pointed earlier left the accused as a high suspect. It was not water tight as required by law. Therefore having failed to prove this case to the required standard and this being a very serious crime, I would feel very uncomfortable in convicting the accused. In agreement with both assessors, I find Dr Kiyingi not guilty on the charge. He is accordingly acquitted
As far as the 2nd and 3rd accused persons are concerned, the prosecution relied on the same evidence to implicate both of them. With regard to the 2nd accused Charles Berwanaho prosecution further relied on his conduct of hiding from the police team upon realizing that he was under probe. In his defense, Charles Berwanaho denied ever hiding and told court that the previous night he had not evaded police arrest but had spent the night at the home of his mistress and that upon realizing that he was wanted by police, he decided to report himself to the police. Further defence was that during the material time he was carrying on a research on Aids, which was being funded by the Global Fund. At that time he was carrying research in Wakiso together with the late Atwine. He conceded that in the process he was in constant touch with the late Atwine on phone. He denied making an international call to Dr Kiyingi. The issue of international call between Dr Kiyingi and Charles Berwanaho was ruled out by the printouts, which the prosecution laid before this court. The accused also made a plausible account of his presence in Entebbe during the material time that he was there doing his research. Therefore, the possibility that the accused was in Entebbe, not on account of Dr Kiyingi could not be overruled.
As for the conduct of the accused that he evaded arrest I am satisfied with his explanation that during the night in question, he had slept at the home of his mistress in Kyambogo and only managed to return in the morning and when he learnt that he was wanted by police he reported himself to the police headquarters. I think it was irrational to make adverse inference on the conduct of the accused person because if at all he had intended to hide from the course of Justice he would not have reported himself to the police headquarters, purportedly to rescue his wife who had been arrested by the police . But I must also say that the conduct of arresting the wife of the accused who had nothing to do with this crime tantamounted to high handedness. A person should only be arrested for the crime he or she has personally committed but not for crime committed by another person, not even that of a spouse.
Another reason the accused related for the constant communication with the late Atwine was that they were brothers. The blood relationship between the two was even confirmed by the prosecution. The accused also testified that there was employee-employer relationship between him and Dr Kiyingi, which would prompt them to communicate to each other whenever it was necessary. All the reason above clearly set out the weakest link in the circumstantial evidence relied on by the prosecution because the links gave other co existing circumstances which would weaken or destroy the inference of guilt. See: WAIBI (supra). Furthermore, if it is true that the assailants had used Charles Berwanaho’s motor vehicle to the scene, why was it that the prosecution failed to identify its registration number? If the information from Atwine was to go by, then he should have been in a position to identify that motor vehicle because that was his brother’s vehicle.
Lastly, I have to deal with Bob Mugisha A3. Again as for the other two accused persons, the evidence against this accused is of a very weak nature. In addition to the witnesses whose evidence I have already analyzed in respect of the other two accused persons, the prosecution relied on the evidence of D/Sgt Turyasingura (PW5), and D/C Ahimbisibwe (PW6). The evidence of D/Sgt Turyasingura (PW5) was that the accused never revealed the names of the assailants a part from saying that he knew the killers. In the testimony of D/C Ahimbisibwe (PW6) the accused never made specific reference as to the doctor from a broad who was planning to kill his girlfriend. The evidence of the two witnesses were therefore speculative and needed very strong corroborative evidence which the prosecution failed to adduce.
All in all, the prosecution case failed the standard required in criminal justice, to prove this case beyond reasonable doubt. That standard is very high. The court is not bothered by the strength or weakness of the defence as was the point in PAULO OMALE -Vs- UGANDA CRIMINAL APPEAL No. 6 of 1977 where the defunct Court of Appeal for Appeal for Uganda had this to say:
“It is for the prosecution to prove beyond reasonable doubt that the prisoner with malice aforethought killed the deceased. It is not for the prisoner to prove accident or self defence and he is entitled to be acquitted even though the court is not satisfied that his story is true, so long as the court is of the view that his story might reasonably be true”
For the above reasons, I agree with the unanimous decisions of the lady and gentleman assessor that the accused persons should not be found guilty. The accused persons are accordingly acquitted and set free.
Order:-
Any money paid for bail be refunded to the accused persons.
RUBBY AWERI OPIO
JUDGE.
11/12/2006.
11/12/2006:-
Judgment read in open court in the presence of both defence and prosecution attorneys.
RUBBY AWERI OPIO
JUDGE.
11/12/2006.
11/12/2006:-
Judgment read in open court in the presence of both defence and prosecution attorneys.
RUBBY AWERI OPIO
JUDGE.
11/12/2006.
11/12/2006.
Regards,
____________________________________________________________________________
Nicholas Ddumba Katumba
P.O. Box 22249, Kampala - Uganda; Tel: +256 756 210975, +256 776 210975
Facebook: Nicholas Ddumba Katumba; Skype: nick-d-k; LinkedIn: Nicholas Ddumba Katumba
Blog: http://ddumba.wordpress.com; Twitter: NDKatumba; Google+: Nicolas Dumba Katumba
____________________________________________________________________________
Nicholas Ddumba Katumba
P.O. Box 22249, Kampala - Uganda; Tel: +256 756 210975, +256 776 210975
Facebook: Nicholas Ddumba Katumba; Skype: nick-d-k; LinkedIn: Nicholas Ddumba Katumba
Blog: http://ddumba.wordpress.com; Twitter: NDKatumba; Google+: Nicolas Dumba Katumba
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