THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
CASE NO: HCT-03-CR-SC-135 OF 2003
UGANDA :::::::::::::::::::::::::::::::::::::::: PROSECUTOR
No. 22386 CPL OKELLO & 3 OTHERS}::::::: ACCUSED
BEFORE: HON. MR JUSTICE D.K. WANGUTUSI
The 16th December 2000 begun like any other working day for the personnel of the Mobile Patrol Unit Jinja.
The three accused CPL Okello Lawrence, Police Constable Mujuni Denis and Aryenyo Max with others left for their patrol duties in motor vehicle UP0041 at 8.00a.m. They patrolled up-to Kamuli. On their way back, they intercepted motor vehicle UAB 787 T which according to the accused had been communicated to them by the control officer Jinja Police to have armed robbers.
The accused intercepted it and the resultant shooting left three of the occupants of UAB 787 T dead.
The police rejecting the plea of self-defence charged the accused with murder.
Briefly the prosecution case is that the accused persons with no apparent reason chased the deceased’s motor vehicle and intercepted it. The accused then ordered the deceased out, told them to lie down and shot them in cold blood.
The accused on their part admitted chasing, intercepting and shooting the deceased. They however said they had received communication from control room Jinja Police to intercept the deceased’s motor vehicle since it was suspected to be carrying robbers. That when they intercepted it, the occupants of the said motor vehicle opened gun fire in a bid to resist arrest. That they (accused_ also fired back in self-defence leading to the death of the deceased.
Its trite law that the prosecution carries the burden to prove the case against the accused beyond reasonable doubt as the accused can only be convicted on the strength of the prosecution case. Wamongo & Others Vs Uganda  HCB 74. It follows that since there are two versions of the events, it’s the duty of the prosecution not only to prove its version but also to disprove that of the defence “by truthful and consistent evidence, in order to remove any reasonable doubt in the case” Martin Kakuba Vs Uganda  HCB 310.
The ingredients that the prosecution must prove in this murder charge were set out very clearly in the case of Uganda Vs Kassim Obura & Another  HCB 9 as the following:-
That the persons said to be deceased are death.
(b) That this death was unlawfully caused.
(c) That the accused caused the death of the deceased.
(d) That this death was with malice aforethought.
To begin with death, the prosecution alleged that on 16th December 2000 motor vehicle UAB 787 T was intercepted and all the occupants save for one were shot dead. The dead were Walube John, Walube Ronald and Kamuhanda Charles.
All the prosecution witnesses testified that the three died as a result of shooting.
PW3 Nakenda Verina who was traveling with the three deceased said they were shot in her presence and their dead bodies loaded on a police pick-up. PW4 also said she saw the bodies of the deceased. PW11 who was on his way from Bugembe and came upon the incident testified to the death of the three. The post mortem reports, which were tendered as agreed facts, indicates that the body of Kamuhanda was examined by Dr Wamala on the 17/12/2000 at 8.30a.m. and found to be dead. Dr Wamala did similar examinations on the bodies of Walube Ronald on the same day at 8.40 a.m. and Walube John at 8.45a.m. and found them dead. The accused persons who also saw the bodies before they were taken to Mulago Hospital, also confirmed to court that Charled Kamuhanda, John Walube and Ronald Walube died. From the foregoing, court finds no difficulty in holding that the three are dead.
On whether the accused participated in the death of the deceased, again PW3, PW4 and PW11 stated that the deceased were shot by policemen. The accused persons in their charge and caution statements exhibit P23 by PC Aryenyo, ExP2 by PC Mujuni Denis and Ex P28 by CPL Okello, confirmed that they were the ones who caused the death of the deceased by shooting. With the charge and caution statements in place cushioned by the admissions of the accused in court I find nothing against holding, that the deaths of the two Walubes and Charles Kamuhanda were caused by the three accused persons.
I now turn to the question of unlawfulness and whether there was malice aforethought.
It is trite law and clearly set out in R Vs Gusambizi Wesonga  15 EACA 63 that every homicide is unlawful unless proved to be accidental, lawfully authorized or excused .
It follows that the presumption of unlawfulness can be rebutted by evidence of accident or that it was permitted in the circumstances. The burden to rebut the presumption is on the accused but on a balance of probabilities. The accused could therefore come up as it did and put up a defence of self-defence. This defence if successful would rebut the presumption of death of the three deceased having been unlawfully caused. Ug Vs Okello [1992-93] HCB 68.
Malice aforethought goes to the intention to kill or the knowledge that one’s act or omission would probably result in the death of the deceased. Where there is no direct evidence, malice aforethought would flow from the manner in which the deceased were killed. It would be construed from the type of injuries, the weapon used, the part of the body injured and the conduct of the killer before or after the attacks.
In this case guns were used. These are very lethal weapons, and the bullets were directed in the stomach, chest and head where very delicate and vulnerable organs of the body were encased. The shooting can only be seen as intended to cause death and in this case without an explanation from the accused persons court would be justified in holding that the death of the deceased was with malice aforethought thus hold them liable of murder.
The accused have however in their defence stated that they acted in self-defence.
This defence therefore raised the question on whether the prosecution had proved beyond reasonable doubt firstly that the accused had not acted in self-defence. Secondly if they did so act in self-defence. Whether the force used was not reasonable in the circumstances in safeguarding themselves. Undoubtedly failure to disprove this defence would only result with a verdict of not guilty.
In considering this defence, its necessary to see whether the use of force was justified at all. That is whether the shooting by the accused was called for at the time it happened.
If the foregoing was in the affirmative then court would have to consider whether the force used was excessive or reasonable in the circumstances.
This still also depended on the circumstances prevailing and had to be considered on the basis of the situation or facts as the accused believed them to be even where this belief was a mistaken one and even unreasonable.
If the three accused persons correctly believed that it was necessary to act on self-defence at the time they shot the deceased fully believing that Kamuhanda and Walubes were armed and were going to shot at them, the reasonableness of the force used must be answered on the basis of the facts as these accused persons believed them to be. In other words if there was an attack on the three accused persons and a defence became reasonably necessary, the three accused in defending themselves would not be expected to weigh to a nicety the exact measure their necessary defensive action. So that if the accused when/if they were attacked did only what they honestly and instinctively thought was necessary, that would in my opinion be evidence that only reasonable defensive action had been taken.
If however there was a danger on the lives of the three accused from the enemy but that at the time they shot the deceased the danger was no longer then due to reasons of surrender or disarmament or even noticeable lack of action from the deceased, then the defence of self-defence collapses and is no longer available to the accused.
This position of passed danger is well illustrated in the case of R Vs Clegg  1 All ER 334 by the House of Lords. Briefly in this case a soldier on patrol observed a car coming for him at speed. It was clear that the occupants wanted him dead. He fired three shots. The motor vehicle passed him with no one hurt. After it had passed he shot a fourth one after it. Their Lordships held that the conviction would be upheld because the danger had passed when he fired the fourth and fatal shot.
In the instant case, the accused persons have put up self-defence.
The first accused said he led a crew on patrol duties on 16/12/2000 and at 4.00p.m. PC Mugisha who was in the control room communicated to him that motor vehicle UAB 787 T a grey Mark II Saloon was carrying armed robbers and they should intercept it. That when they came across it on Kyabazinga way, they gave chase. He said when the occupants of the Mark II realized they were being chased they stuck on the right of the road. So they were forced to overtake them from the left. That when the bumper of the police motor vehicle had reached the middle of the Mark II, the occupants of the suspect vehicle opened fire and he heard sounds like that of a pistol.
That immediately on hearing this pistol they jumped off. The first accused said further that the patrol vehicle in which he was proceeded 30 yards ahead before they stopped. That he got out he heard a big gun coming from the suspect vehicle. He took cover on the pavement (left side of the road). They then exchanged fire. The accused said he shot there only once. That the man with a big gun was putting on a black jacket and kept on changing position as he fired. According to him, this exchange took five to seven minutes.
The second accused Denis Mujuni told court that he was on patrol duties on the 16/12/2000 together with the other two accused. Between 4.30 and 5.p.m., they received communication that Motor vehicle UAB 787 T was carrying robbers. At Kyabazinga way they spotted the suspect car and they gave chase. The car swerved to the right and so they were forced to overtake it from the left and as they overtook it the occupants of the suspect motor vehicle opened fire. They released two shots. So he jumped off and took cover. No sooner had they taken cover than more gun fire from opponents errupted. That when he heard a bullet from their side, he believed that the commander had ordered them to shot back.
The third accused PC Aryenyo on his part stated that while on patrol duty on 16/12/2000, their in-charge received information that a motor vehicle No. UAB 787 T was carrying robbers and should be intercepted and occupants arrested.
That they came across the said motor vehicle and gave chase. That as they overtook it from the left side, he heard gunshots of a pistol. That he jumped off the patrol car and took cover. As he took cover, he heard A1 ordering them to fire. That at that time he had not yet heard the SMG. He did not know where the SMG person first fired from. That he after the shooting, he moved with A1 to the suspect motor vehicle and on the pavement, came across a pistol. He picked it. Then Okello came across a woman behind the suspect motor vehicle and led her to the patrol vehicle. Then Okello communicated. That when reinforcement came, and they were preparing to tow away the suspect motor vehicle, one of them shouted that there was a magazine in the vehicle.
Under cross-examination, he said they had overtaken the motor vehicle by one metre when the pistol was fired.
He said he took cover in a winch with grass a yard tall. He said this bush was on the side of the church.
That as he jumped off from the patrol vehicle he heard bullets from the big gun and he crawled 10 metres into the bush. That he fired from near the car and then moved towards the railway.
That was the scenary as painted by the accused persons.
The prosecution on its part relied mainly on three eyewitness PW3, PW4 and PW11.
PW3 Nakanda Kevina, a sister to the