THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI, CJ, TSEKOOKO, MULENGA,
CRIMINAL APPEAL NO. 2 OF 2005
KANYEIHAMBA AND KATUREEBE, JJSC)
2. KATUSHABE CHARITY :::::::::::: APPELLANTS
UGANDA :::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
(Appeal from the decision of the Court of Appeal, at
JUDGMENT OF THE COURT
Kampala [Mpagi-Bahigeine, Engwau and Twinomujuni, JJA.]
dated 2nd March, 2005 in Criminal Appeal No. 2 of 2005)
Baguma Evans (A1), Katushabe Charity (A2) and Byarugaba Emmanuel (A3) were tried and convicted by the High Court on two counts of murder and were sentenced to death on the first count. Sentence on 2nd count was deferred. Their appeal to the Court of Appeal was dismissed. They have now appealed to this Court.
There is some confusion about the name, or description, of the 3rd appellant. Although in the indictment and in the High Court he is described as Byarugaba, his advocate in the Court of Appeal described him in the memorandum of appeal as Byaruhanga which name was adopted in that Court’s judgment. This is also reflected in the memorandum of appeal to this Court. Similarly written submissions misdescribe him as Byaruhanga. In this judgment we revert to the name of Byarugaba Emmanuel (A3).
We summarise the facts first. Apparently there had been a land dispute between one Charles Karambuzzi (a father to A2) and Onesmus Twebaze (the 1st deceased) and Karambuzi lost the land dispute in court. There was a house belonging to the 1st deceased on the disputed land. In early January, 2000, the first deceased got court orders to enforce the Court decision by evicting Karambuzi from the house. Court brokers were assisted by policemen and local askaris to evict Karambuzi. During the eviction process, Karambuzi together with the three appellants unsuccessfully resisted. Indeed the Karambuzi group was subdued and Karambuzi was arrested and detained because of his resistance to execution. There and then, according to Rukundo Hadad (PW6), A2 and A3 uttered death threats against the first deceased. Thereafter, PW6 used to see the three appellants move about in the area together. He also learnt that the three planned to kill him and Twebaze. They both reported the matter to Kambuga Police who carried out some investigations. Before 30th January, 2000, A2 was seen moving around with A1 an army man. On the 30th January, 2000, the three appellants were seen at least thrice moving together near the home of the 1st deceased. Later in the evening (about 8:30pm) the 1st deceased was outside his residence while his wife Ngazare Paragia (2nd deceased) and their daughters Aturinda Mercy (PW7) and Atukunda Anita were inside their residence. At that time as Twebaze was about to enter into the house, and Anita was proceeding to open the door for him, the 1st appellant threw a hand grenade at him. The hand grenade exploded injuring the said Anita and killing the 2nd deceased, and it seriously injured the 1st deceased. Very soon thereafter A2 and A3 appeared at the scene and asked PW7 and Anita who was in agony as to what had happened.
According to PW7, “following the blast the first people to our home were Katushabe (A2) and Emmanuel (A3). They asked us what had happened. We told them we had been killed. They laughed and said can you also be killed? They then went away laughing”. After they left, other people came. The 1st deceased was taken to hospital where he died later. As a result the 2nd and 3rd appellants were arrested in connection with the murder of the deceased persons. Because of information given by Rukundo Hadad (PW6) and Aturinda Mercy (PW7), a hunt for A1 was mounted and two days later he was arrested at a road block while he was travelling to join his army unit. After his arrest, he made a charge and caution statement confessing his participation in the commission of the crime to a magistrate, Mr. Charles Yeteyise, (PW5).
At the trial, the prosecution called a number of witnesses including PW6, who testified about threats made by A2 and A3 about the murder of the deceased. PW6 gave evidence of how he heard the threats made by A2 and A3. PW7 testified about how she saw A2 and A3 soon after the grenade explosion and what they said. PW5 produced the confession statement, after a trial within a trial.
All the three appellants gave sworn evidence. The 1st appellant denied knowledge of the other appellants and everything connected with the offences. He admitted making a statement to PW5 allegedly because of torture. He claimed that he had been tortured by the army and the police personnel and was told to say what is contained in the confession statement. He raised an alibi to the effect that he was not at the scene of the crime but somewhere else. A2 denied the offence and denied knowledge of A3. She admitted she knows Rukundo (PW6) and claimed that both Rukundo and his sister told lies about her. A3 claimed that he did not know A1 and A2. He denied everything that was stated by Rukundo in his evidence. He admitted that on the night in question at about 7:30pm, he was in the village.
After the trial, the learned trial Judge summed up the evidence and the law to the two assessors. He directed the assessors to consider the evidence about participation in the murder by each of the three appellants. He directed the assessors on the nature and import of the confession of the 1st appellant. He referred to the evidence of PW6, PW7 and PW8 and to the threats allegedly uttered by the 2nd appellant. He directed the assessors on the relevancy of a dying declaration made by the 1st deceased to PW10 (Asiimwe Agard) and to the alibi made by the accused persons. In a joint opinion the two assessors believed the prosecution witnesses including an alleged dying declaration of the 1st deceased and held that A1 was a liar. They advised the trial judge to convict all the appellants.
In his well reasoned judgment, the learned trial judge considered the confession statement and found it to be true. He considered various pieces of circumstantial evidence and believed the evidence of PW5, PW6, PW7 and PW8, and found all the appellants to be liars. He found them guilty and sentenced them to death on the first count but deferred sentence on the 2nd count.
On appeal, the Court of Appeal upheld the findings of the trial judge and dismissed the appeal. The appellants have now appealed to this Court. Each one of them was represented by an advocate who filed separate memorandum of appeal for each of the appellants.
Each advocate filed separate written arguments in support of the appeal of each appellant. Mr. Odiit Andrew, Senior State Attorney, for the respondent, filed an omnibus single reply.
As we proceed to determine this appeal, we bear in mind that the case of each appellant has to be considered separately.
Two alternative grounds of appeal for the first appellant are as follows:-
The learned Justices of Court of Appeal erred in law when they failed to properly subject the evidence on record to fresh scrutiny and evaluation thereby upholding the Appellant’s conviction and sentence.
That in the ALTERNATIVE but WITHOUT PREJUDICE to the aforesaid, the Appellant shall invoke the principle of fair trial and seek to mitigate the death sentence to custodial sentence.
On behalf of A1, Mr. Alli Gabe in reality presented a statement of arguments on the first ground only. We must point out at the outset that his submissions are, with respect, somewhat speculative and puzzling. This is because instead of pointing out the errors of and criticising the Court of Appeal in the way it evaluated evidence and arrived at its conclusions, he goes out of his way to reproduce lengthy passages of the confession of his client which he follows with fanciful imagination as to why the confession cannot be true. He creates a lot of his own imaginations about what the police and the army did as to induce his client to confess. We note that his speculation is not based on evidence on the record before us.
Be that as it may, counsel submitted that although the Court of Appeal correctly set out the law in respect to its duty as a first appellate Court, it did not properly evaluate the evidence as a whole. He criticised the learned trial judge for his observations while admitting