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.