Guilty or not guilty?

The talk of town at the moment is the murder of a promising young man, Akena Watmon allegedly the hands of a pompous tycoon known as Mathew Kanyamunyu. It has unraveled like a clearly choreographed movie with each one taking up their rehearsed and crammed roles. However the sad reality is that a tragedy has befallen our nation. By all accounts we could have our own "O J Simpson case". For starters and beginners O J was a celebrity in California who was suspected of having murdered his wife and another young man at their residence. It was a trial that had many twists and turns, it involved unearthing mysteries and myths, in actual sense it was a jigsaw that had to be carefully patterned.
The abridged facts of the incident as presented by various media outlets are that Akena had at leisure gone to Game Supermarket Lugogo and whilst there, he tried to park his car which accidentally brushed on Mathew's car causing a scratch. Meanwhile Mathew together with his beautiful girlfriend Cynthia were inside the car. Akena noticing his mistake decided to take it upon himself to come out and negotiate with the owner. Akena was shot at this point according to the dying declaration he made to his brother in hospital shortly before he passed on. After being shot, he was taken to three different hospitals by Mathew before he finally breathed his last. I must admit that these facts are still scanty as we have not yet obtained an autopsy report, a report from the investigation team, to say the least. But on the basis of what we have we can apply the law.

First we need to be aware of the cardinal principle in criminal law that anyone charged with a criminal offence is presumed to be innocent until proven guilty. We can't be blind to this because in seeking for justice we must be able to do justice ourselves. Article 28(3)(a) is instructive on that matter. Mathew at this point can only be treated as a suspect and can be said to be innocent at least in the eyes of the law. Courts in Uganda still rely on the case of Woolmington vs DPP [1935] AC 462 to determine the standard of proof in murder cases. The standard set in this case was that prosecution was required to prove beyond reasonable doubt that the accused was guilty of the offence committed. This however doesn't mean without a shadow of doubt. Proof beyond reasonable doubt means that;
1) Before verdict, the court should consider the evidence as whole to determine guilt.
2) The court should not determine the facts in issue separately and in isolation.
3) That where issues of credibility arise between evidence of prosecution and the defence, it is not necessary to believe the defence evidence on a vital issue, it is sufficient if in the context of all the evidence, a state of reasonable doubt is left as to the guilt of the accused.
The above leads me to what the prosecution must prove beyond reasonable doubt;
1) that the deceased is dead
2) that the death of the deceased was caused unlawfully
3) that the death was caused with malice aforethought
4) that the accused participated in causing the death of the deceased
We shall deal with one ingredient at a time.

For the first ingredient on whether the deceased is dead. It was reported that the deceased died at Norvick Hospital and a postmortem was done at Mulago Hospital. It therefore not in dispute that the deceased didn't die.

The second ingredient is whether the death of the deceased was unlawfully caused. In law, every homicide is presumed to be unlawful unless it was accidental or excusable. This was cited and approved in the case of Uganda vs Dr Aggrey Kiyingi and 2 Others. It is excusable when caused under justifiable circumstances like self defence, or property or person or when authorised by law. The facts before us do not suggest any accident or any justification and it can therefore be concluded that the death was unlawfully caused.

On the third ingredient, whether the death was caused with malice aforethought. S 191 of the Penal Code Act Cap 120 defines malice aforethought.
It is clear from that section that malice aforethought is subject of a human mind, which is difficult to prove by direct evidence because what is in the mind of one is difficult to discern by another, but can be inferred from the surrounding circumstances of the incident under investigation. In R vs Tubere [1945]12 EACA 63 court held that malice aforethought can be inferred from ;
a) The nature of the weapon used (whether lethal or not)
b) The part of the body targeted (whether vulnerable or not)
c) The manner in which the weapon was used (whether repeatedly or not)
d) The conduct of the accused before, during and after the incident (whether with impunity)

From the the facts it is clear that a sensitive part of the body was targeted. Doctors at Mulago Hospital recovered bullets from his stomach. The weapon used is also likely to be a gun. If the doctors say that bullets were recovered from his stomach then it is unlikely that he was either stoned or hit with a stick. We can therefore be sure that a dangerous weapon which in this case was a gun was used in the murder. Bullets by their nature are not known to fly out of nowhere in the absence of a gun, so it is also unlikely that he hurled a bullet at him or at worse he coughed the bullet.
The conduct of the accused after the incident is very important. We learn that he carried the victim to three different hospitals and later reported the matter to the police. First we should use a "reasonable man's test" to establish what any other person would have done. Many argue and say that if it is true he shot him then he wouldn't have carried him to hospital. This however cannot be conclusive because it could have been an act of panic in a bid to try and make up for his mistake. Any person on noticing that someone has been shot in front of them and more so in a parking yard of a big supermarket manned by security officers, would notify those around. It is unlikely that they would not tell any of those in charge of the premises and also notify police at a later time when hopes of the victim's survival are over. Be that as it may, we can consider the case of Uganda vs Kabandize (1982) HCB 93 where the accused stabbed the deceased and ran away to a nearby swamp where he was arrested. Court held that the conduct of running away immediately afterwards was that of a guilty mind. This can be differentiated from Henry Kifamute vs Uganda SC Crim Appeal, where the appellant was convicted of aggravated robbery and murder and it was stated that after the offences had been committed the appellant ran away but was overrun by police. Court held that any innocent person would have run for his dear life given the irate mob that was present. The facts show that only Matthew and Cynthia were present at the scene of crime and it is unlikely that it would have required them to run since no mob was around. We need more evidence about what happened between the shooting and the death of Akena to be conclusive on this. However any doubt created as to the conduct of the accused should be resolved in favour of the accused.

The last and most contentious ingredient is whether the accused participated in causing the death of the deceased. For Mathew to be convicted or acquitted, it may settle down to how best this ingredient is proved. A dying declaration is the first consideration on this. S30(a) of the Evidence Act provides for admissibility of a dying declaration as an exception to hearsay. Justice Duncan Gaswaga in Uganda vs Jackie Uwera stated that, "the admissibility of a dying declaration in evidence is founded on the principle of necessity. A dying declaration is not given on oath nor subjected to cross examination. But as a piece of evidence, it stands on the same footing as any other piece of evidence. If found reliable, it can form the basis of a conviction." In Okethi Okale and Ors vs R 1965(EA) 555, the court held that it is generally speaking very unsafe to base a conviction on a dying declaration of a deceased person unless there is satisfactory corroboration. The evidence on record can be used to offer corroboration to the dying declaration. Some reports suggest that Cynthia could have been a target of this shooting given that she is a subject of political persecution back home in Bujumbura. I think this will be partly answered by the autopsy report. The distance between the one who shot and the victim will be determined by the medical report. I refuse to buy into this because Cynthia was seated in the car at the time of the incident and Akena was outside, so we can rule out the fact that he could have been mistaken for Cynthia given that these are two very different people. If it is also true that Cynthia was the target then the first reaction by Mathew would not have been to take Akena to hospital but to whisk her away since it couldn't be established if the killer was away or not. Police has searched Mathew's residence and found no gun and he also denies ever owning a gun. We have already ruled out the possibility of a stick, stone or anything apart from a gun because of the bullet recovered from the body. Guns are also not known to release bullets at leisure without anyone pulling the trigger. They are owned and don't own themselves. That means there is a gun somewhere that tragically ended Akena's life and that is the first puzzle that police must fill.
As it stands, the DPP has a tough call before him and to get Matthew convicted many gaps in the prosecution's case have to be filled because one is convicted not on the weakness of the defence but on the strength of the prosecution. However, at the moment it remains that Mathew still enjoys the presumption of innocence and cannot be taken to be guilty.

Conceding defeat is hard but necessary

As I write this, the world is still recovering from another shocker. Donald Trump is the president elect of the United States of America, he has trounced Hillary Clinton to win the most coveted office on land. Besides all that has surrounded this election, the media hype, the altercations from either side, the twists and turns, I have one major takeaway from this election. Conceding in the face of defeat. That is an important lesson for us all to pick from this election.
Minutes after Trump had been announced winner, he was called on to address a jubilant crowd of his supporters and the world, as president elect of the Free world. "I just received a phone call from Hillary congratulating me for having won this race", was his opening statement. To me it spoke volumes, especially when I reflect on the election Uganda has just had as a country which to this day has never been accepted by those that lost. First of all it spoke of a country that even in its political division, is united as a country, a people that when they don't speak the same political language recognize that they are one as Americans. It once again showed that Americans are bound together by ties invisible to the eye. That to me is a very important lesson especially for our African leaders and to us the African people.
It wasn't long before Clinton took to the stage herself. She was full of laughter albeit beneath you could discern the sadness that she was fighting hard to suppress, something that is normal for any human being. Anyone in her position would be crying themselves out or perhaps drinking themselves silly, all to forget but she chose to come and address the world. The crowd she addressed was an emotional one as well. Fighting hard to hide emotions yet doing little to succeed. Her opening statement was not different from Donald's, "Last night I congratulated Donald Trump and offered to work with him on behalf of our country". She went on to say that she still believes in America and always will and if the others do then they should accept the result and move on. This was extraordinary especially after losing an election that she was clearly portrayed as leading. Many times in African countries, when a candidate is portrayed as leading and then goes on to lose the election then the story is very much different for them. Fingers are pointed and in most cases results are rejected, presidential petitions are filed and it is from here that hatred is bred. I think the story all begins with having faith and trusting the systems in place. Many of the people who run for political positions supposedly do not trust the system and yet continue to run within the establishment. That is a contradiction in itself. The elections are marred with hatred, brutality, intrigue, bribery and all the election evils that come with it. The results are then rejected and that is how Kenya got to the post election violence of 2008, that is how Robert Mugabe of Zimbabwe was made to share power with his nemesis Morgan Tshangaria, and that is how disunity has managed to flourish amongst us. But again we have had our very own defy the odds and act "unAfrican". Jonathan Goodluck of Nigeria conceded and congratulated the president elect who had just defeated him. It only shows a people who are mature politicians, those that have outgrown the little nothings that divide us. Hillary in her concession speech said that "Our constitutional democracy enshrines the peaceful transfer of power. We don't just respect it, we cherish it". That is a huge statement for us to pick from especially after a rollercoaster campaign that has been full of barbs and tantrums flying from one camp to another. Democracy may be alien in Africa but we had better pick a few things from it if we are to build great nations. Otherwise I wish President elect Donald Trump, 45th President of USA, a successful presidency and an enriching term in office.

The First Encounter

Sitting still on that bright sunny morning,
My silhouette contorted on the floor beneath me,
I recall with utmost precision, all the occurrences of that day.
With barely any space in that small congested office,
I sat readying myself for what the day would bring with it.
Same old things, but just a new day, I thought.

"Hi Pat" the message appeared in full glare on the screen,
Unaware of the thoughts running through me,
But fully conscious of my desire to care,
I made a half-hearted stare, but well knowing I had to reply.
"Hi", the reply was that bare
It was only but the start of a huge dare.

The pleasantries didn't last, so as was expected
This was a stranger I had barely spoken to until now
Only crossed paths on a few occasions at school.
Midway the tete-a-tete, she stumbled upon a revelation,
That actually, a good fraction of me was meek and mild.
Such was our first encounter!

The Makerere University stalemate; what should be done

It is so sad that as I write this, the region's best and oldest university has closed businesses indefinitely! This was after a series of incessant strikes by both the students and the lecturers.

Many questions here but certainly very few answers. The most common of questions on everyone's lips is what exactly went wrong? If I were to answer that in one sentence, I think I would say everything went wrong. As a student of this great institution, I have not interested myself in the intricate affairs of the University but that is not to say that I have no clue about them. For starters I find that the biggest problem the institution faces rotates around finances. The spark came with the failure of the lecturer's to be incentified. I find this problematic for an institution that has a populace of more than 30,000 students who pay tuition. In addition to this, the government is under obligation to meet its end of the bargain. Who then is not playing his part? For the time I have been at this university, I have not known of a time when someone has failed to pay tuition and gone on to sit for examinations. That actually means the students make the payments. Some think that the government has absconded on its duty of contributing its share to the University. There is also talk that students on statehouse scholarship take a long time to pay if at all they get to pay at all. Another school of thought says that actually there is a lot of mismanagement of these funds.
Whatever it is that is causing this I think the government should stop kicking the can but rather act fast because this is a crisis at hand. First is that Parliament should be immediately called from recess because this is a very urgent matter that goes beyond the gates of Makerere. We have seen them pass supplementary budgets for defence even in the absence of war, this is surely a more pressing issue. A committee should also be immediately set up to investigate the mess in the institution. A forensic external audit should be done to clean up the entire system. Desperate times call for desperate measures.

Prof. Ngasirwa Patrick's Inaugural lecture 2046

There are few things one gets to achieve in their academic journey and an inaugural professorial lecture is one of those. The fact that each year is graced by one such lecture or at times none explains the difficulty with which it comes. I was lucky to finally have mine.

So this Monday afternoon 07/05/2046, I was set to deliver an inaugural professorial lecture at the University state of the art main hall. The preparations were in full gear and word had already made rounds that the great law don would finally be achieving full status of Professor. Beauty and The Law was the subject I had chosen to deliver on and had spent a pain staking 6 months preparing for this.
Fast forward the day had stealthily arrived with me hardly noticing. Eminent and distinguished people were expected to grace this particular occasion. At about 1:45pm students and invited guests started trickling in with many in high spirits. Members of the legal fraternity came in one at a time, those from other faculties also wanted to be part of this historic event. Different media houses had set camp at the place among others being France 24, BBC, CNN. At that point I noticed two prominent figures alight from the latest model of the Range Rover Sport. It was Justice Conrad Kimbugwe together with Justice Mark Mutambo who had both been recently appointed to the Supreme court and had handled the recently concluded presidential petition. We exchanged a few pleasantries and joked about the Amicus Curiae application they had rejected of which I was lead petitioner. Before long they were led to their seats, as more guests arrived at their convenience. Dr Sekamwa Rodgers who had just completed his PHD at Cambridge  university was up and about trying to make sure everything was going as planned, working closely with Prof Kangye Stanley who was chairperson steering committee for the event. I had also noticed as I stood at the entrance that Counsel Busobozi Wycliffe who was counsel in the Amicus application had entered through the other door and seemed not in mood to share any greetings with the justices of the Supreme court, I suspect because they had rejected his submissions in the application. He instead chose to seat next to Steven Nuwagira, a man who life had not been fair to. Steven had made many unsuccessful attempts at various political positions but to no avail. Ever since he had won the Guild race during our days at campus, nothing else had gone on to materialize for him. The latest blow was the just concluded presidential election where he managed to garner only a paltry 1.1% of the total vote. He had gone on to announce his retirement from public life. Many more distinguished guests kept taking their seats in the hall.
Time check 2.30pm, it was time for the function to start. The school of performing Arts which was in charge of the musical presentation started us off as we proceeded to make way into the hall. The entourage was being led by Prof Wadidi Frank who was in fact the first among us to deliver such a lecture, closely followed by Prof Kabuga Patience, Prof Nagawa Melissa, Prof Katumbire Hillary. Dr Kevin Jemba, Dr Khaddu Jeff, Dr Kasibante David, Dr Naluyima  and many other eminent law lecturers formed the entourage as well. It was visible from the group that women had gone a notch higher in the academic field as compared to us the men. Being the owner of the event I came at the tail end of the procession together with my lovely wife (name withheld on purpose). The main hall was brimming with people of all walks of life, students, politicians, public and civil servants, dignitaries. The music bellowed, we marched on, the crowd kept clapping and the cameras couldn't stop flashing, inside me I couldn't help but smile.

Soon after the anthems, Isabella Magina(a successful Attorney herself) who was the MC of the function mounted the floor and took us through a rollercoaster of the day's program. She then called upon the Vice Chancellor to officially open the ceremony. Prof Begumya Rushongoza wasted no time with formalities, he welcomed the guests in their distinguished capacities and thanked them for making it to the event. He reserved special recognition for Chief Justice Aaron Kaleba and the learned Attorney General Nyombi Solomon. He also didn't forget to recognise the presence of the Acting Chairperson of the Judicial Service Commission, Ahikiriza Benjamin.
Shortly after, the Principal School of Law was called on to introduce me and invite me to deliver the lecture. Dr Muhumuza Ivy strolled to the podium much to the amusement of her former classmates who had fond memories of her commitment especially to tasks entrusted to her. They could imagine how much Law School had changed especially under her stewardship. But before executing her duty at hand, she noticed that a very important man had just entered into the room and deemed it wise that he is brought to the attention of us all. Dr Ivy first introduced Ambassador Kansiime Drare who had recently been appointed to represent Uganda in Russia. His wife was conspicuously absent but we were later told that she had a judgment to deliver that day in the Supreme court of Nigeria. "Ladies and gentlemen gathered here today, the task before me is simple. I have the honour of introducing to you a man of great worth, a man who has achieved so much success in the area of the law, one who has amassed so much knowledge on the law. Prof Patrick started with a Bachelor's degree in Law here at Makerere, went on to do a Masters in Law at the University of Pretoria in South Africa, did his PHD at the prestigious Havard University..." At that point I woke up!!!

Democracy; a principle that never was

 One of the most astounding arguments I have ever made was that democracy is an illusory principle that doesn't exist. Over and over again I have emphasized that America, what many refer to as the free world and the leading democracy in the world is actually not. Many scribes and political pundits have often asserted that India and China are the biggest democracies in the world. It is true numbers don't lie but it is also true numbers don't measure a democracy at least in my opinion. While at Gettysburg many years ago, President Lincoln defined democracy as a government of the people by the people and for the people. President Museveni also has his version, he believes it is simply having the majority in an election. For starters I think there is no standard definition of democracy. What we have are beliefs of what a democratic world should be like. The Western world has chosen to tread its own democratic path and I think we ought to define ours too. Periodic elections is a step forward in building of a democracy but rigging these elections are four steps backwards. Granting freedom of expression is another leap forward but restricting and censoring the press is a huge leap backwards. These are the small things that our democracy can revolve on and of course not just limited to these.
Robert Michels in his book Political Parties makes a plausible argument about most representative democracies, that they tend to deteriorate towards an oligarchy and he calls this the Iron law of Oligarchy. In 1989, when Uganda first went to polls soon after NRM's capture of power, there was a huge sense of participation of the people, in fact it was a psephocracy in the making. The NRC elections had a prodigious impact on the country's democracy because they once again restored a sense of belief in their government, the people felt they were their own rulers and everyone could feel they were being represented.
Fast forward today, perhaps we have more leaders representing the people than we had in 1989, but the satisfaction and trust that the people felt then has long faded. I could bet we have at least a leader (self styled or genuine) in every household but the true embodiment of statesmanship has long eluded them, politics is only a game for survival now. It is regrettable to discover today that Uganda as a nation has succumbed to the Iron law of Oligarchy.
Adolf Gasser in his analysis of representative democracy finds that for a country to remain as a stable democracy, society has to be built up from bottom to top. Needless to say society has to be built up by its own people, those that later become the very leaders of that society. Gasser makes a rather intriguing argument when he says the people must also have power to defend themselves which means they should be equipped. I do not share the same school of thought with him on that because I believe that society is built by values and these values spring from beliefs. A society built on a solid rock is that which has values that they stand for, beliefs and practices that epitomize a united people. Perhaps one day when we re-discover our values, we could then begin treading the great path of moulding our own democracy.

Where did our values go to?

Earlier this week as we went about our normal course of business in class, one of our lecturers suddenly stopped and posed this question to us. "What is that one thing that we as Ugandans identify ourselves with, the value that we all stand for as a country?" As I rummaged through my mind searching for the answer, it suddenly hit me hard that there actually was none. As a follow-up to his question he implored us to stop and think about our people right from the president. "The problem with this country is that everyone is a liar, right from the president", he went on to say. Immediately my mind begun recollecting the various unfulfilled promises and pledges he had publicly made key among them being in 2001 when he expressly stated that what he was seeking for then was the last term in office but 15 years on, the status quo remains. I also stopped to think about the alternatives that we have been offered as a country, the most pronounced being Dr Kiiza Besigye. The two seem to have been cut from the same cloth for the story is no different. That is only a tip of the iceberg for we are now used to the constant screaming headlines about loss of billions of shillings, it is now part of us to expect a story about rape, about defilement, about robbery, this has come to define the society we live in.

But have you ever stopped and asked yourself what the problem is. We boast of a Christian populace of more than 80%, with at least a church in every neighborhood but is this what is propagated in our churches today? Certainly not! Our churches seem to be breeding very many Christians but without any Christianity, it is little wonder that we have very many sprouting churches based on material gaining. I for one think that first of all the moral fabric of our society has completely been eroded, we have degenerated our society to a point where morality plays second fiddle. If we are to re-instill values that we once stood for then that should be our starter. No society in the world boasts of values that they stand for without morals. Our grandparents continuously remind us of a time in their era when a man was always taken for his word. When it came to selling of land for example, you didn't need to sign anywhere as acknowledgment of sale but your word was your word, today they look back at those times with nostalgic feelings. Am at pains to admit the fact that today we have people who can sale their land to multiple buyers with each being given an assurance that he was the only holder of that land, today we have people who lie to make a living. In other words we have a people who cannot be trusted. Such is what our society has been relegated to. George Orwell once said that in a time of universal deceit, telling the truth is a revolutionary act. What we  crave for now as a country are more revolutionary acts from our people.

A society whose moral fabric has broken down needs to be rebuilt by simply going back to the drawing board, to ask for those things that our ancestors did to preserve the standards of their society. If for example it needs people to be reminded that it takes a society to raise a child, that it requires a mother to be by her child as she moves through her stages of growth then that should be done. These are the simple things that we have continuously absconded from and believe me or not they continue to haunt our very being. We have children who grow up in a house as opposed to children being brought up in a home. Perhaps we need to know the difference between a house and a home, growing up and being brought up to know why we are the way we are!!