LEGAL OPINION ON THE ‘GUILTY’ VERDICT OUT OF THE NSENGA TRIAL


Please read this legal opinion I gave you on 24th July. I was worried then you had had allowed emotion to get the better of your normally good judgement. I told you, in all likelihood, this woman Nsenga would have a very hard task, convincing the court of her innocence. I told you very few people would believe her talke that she run down her husband in front of a previously locked gate, after it had stopped, because of a mechanical failure in the car. The defence also weakened their case by calling the Deputy Director of the CID as a witness. This totally destroyed his credibility. He could only be taken seriously if he had resigned his post and told the the court he was giving evidence in protest. In fact the prosecution made a huge error in not applying to the court to treat his evidence as that of a “Hostile Witness”. Such evidence is normally treated with great caution because the courts assume the witness has an axe to grind or a motive to lie or embellish the truth. In any event, I think the judge ignored his evidence and treated it just as that of a hostile witness.

Mrs Nsenga can still appeal on legal technicalities, in regard to her mental state at the time she run down the husband. But in the absence of satidfactory techinical or scientific evidence that a car that has stopped can, through mechanical failure, gather such speed and strenght within such a small confined area as a garage as to knock down and crush a human being is a very hard sell for any innocent bystander to swallow. I think the judge drew an inference that the gates were actually open when Mrs Nsenga returned home and she drove at her husband at speed crushing him underneath the car. She compounded the initial injury by reversing over his prostrate body.

Mrs Njenga needs a much better lawyer to handle her appeal. I think the original defence lawyers were incompetent because they should have set their stall on a defence of manslaughter and led evidnce alluding to her mental state arising out of the breakdown in her marriage which might have amounted to diminished reponsibility in law. If I was her lawyer, that is the line I would have taken. please read the example I gave you, of you shooting down Fardson Karanga in public with an UZI sub-machine gun. It is going to be a very hard sell for you to convince a court that it was an accident, evn if in fact you have a licence to carry the gun.

Thank You

George Okello

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This is a very normal process in the interaction between the Police CID and the DPP’s office. Files move backwards and forwards, but it is the DPP who makes the final decision on whether to prsecute and what charges to prefer. This is because it is the DPP who ultimately has to prove the case in court.

Secondly, in a majority of borderline cases eg, murder and manslaughter, attempted murder and serious bodily harm, robbery and burglary, rape and indecent assault etc, the DPP will prefer to charge the accused with the graver offence because the actus reus of all these offences are always the same- the duty of the prosecuting attorney then is to prove mens rea or intent.

In a case like this one you are commenting on, I think you have got your understanding of the law totally mixed up. It would be a very negligent DPP who charged this woman with manslaughter and not murder. In a case like this one, it is highly imprable that a car that has stopped infront of a gate, then suddenly picks up speed and crushes a person inside the gate. This is not something that ordinarily happens. Iin fact nobody would believe such a tale. Which means, there is going to be a very heavy burden on the accused to dispel the near certain presumption that she intended to kill or cause grievious bodily harm to the deceased. I once prsocuted two muder cases in the High Court sitting in Lira, which were very sensational.

1st, an itinerant worker was employed by a petrol station to cutt off a brach of a tree that had overgrown and was encroaching on the roof. The man climbed up the tree and with his saw, started cutting off this huge tree branch. By coincidence, a motorist who was filling up passed under the tree and it is at that precise moment that the brach snapped and hit him on the head like a bullet. He died instantly. The man was arrested and charged with murder.

2nd: a 14 year old girl, in a school fight, picked up s huge stone and used great force to hit a similar aged boy on the head, killing him instantly. The boy had been beating up.

Now in both these cases, the DPP instructed me to prefer a charge of murder, which on trial was reduced to manslaughter on grounds of lack of intent/self-defence in the case of the girl (2 years youth custody- and eventually customary compensation according to Lango customs- I think the girl was released from prison after only 3 months). In the the case of the man, the murder charge was dismissed, instead he was convicted of reckless negligence or something like that ( I can’t remember the Uganda Penal Code.

The point I am making is that the best prosecuting tactic is to charge the accused with the graver of the offences that may have been committed and it would be up to the court to make a finding on the facts.

You seem to be reading some form of malfeasance or malpractice in what is in fact a very common procedure or process between the DPP and the Police. Unless you can provide any proof that untoward influence was being used, I do not see anything wrong so far in the trial of this woman.

If you shot someone with a gun in broad daylight and killed him, it would be a very stupid DPP who would charge you with manslaughter rather than murder. Even if the issue of self-defence, mistaken identity etc are raised, I think these are defences that it would be up to the court to deliberate in a trial for murder. This is why I can not understand you when you insist that this woman should be charged with manslaughter rather than muder. Running down people infront of locked gates is surely not a common occurrence in Uganda or anywhere else in the world. In fact I think this woman is going to be put to task to exonerate herslf because her tale is very difficult to swallow to an impartial observer.


George Okello

PS: I last practised criminal law 20 years ago

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Comments

2 Comments so far. Leave a comment below.
  1. Kiwanuka L. Nsereko,

    Let me try to deal with a few issues regarding the Uwera case:
    1 . Under Criminal procedure a person is never convicted on the weakness of his/her defense but on the strength of the prosecution case. It is a criminal law principle that where the accused person denies the offence charged against him/her, the burden rests upon the prosecution throughout the trial to prove all the ingredients of the offence against the accused. The accused has no duty to prove his or her innocence. This was the holding in the case of woolmington vs DPP 1935 AC 322 and also Sekitoleko vs Uganda 1967 EA 531.i Judge Kasigwa was wrong to shift the burden of proof from the prosecution to Uwera!
    2. No evidence was brought on record that Mr. Senga was the regular Gate Keeper at his home that the wife knew beforehand that her husband was the one to open the gate and therefore prepared beforehand to kill him. This ingredient should have swayed the judge to conclude that there was no malice aforethought or premeditation.
    3. The expert evidence from the Makerere university engineer has a gapping whole in it. It only caters for the technical side of the vehicle, without considering the neurological response in case of accidents. Drivers in shock tend to develop temporally paralysis leading them to depress the accelerator, hence upping the speed willfully. Thus the contention that Uwera dragged her husband for some metres must have been discounted because of the likelihood of a panic attack. The driver panics and he/she is very likely to miss the break for the accelerator.
    4. It is a principal of law and moral law that it’s better to allow 99 criminals walk free than convicting one innocent person…hence all contradictions during a criminal case are resolved in favor of the accused. Thus far it is erroneous for the judge to assert that Uwera had talked to someone and threatened to “do something, they would not imagine to Nsenga.” How many times in anger have people said “I will kill that person”? This cannot be enough premises to provide premeditation.
    5. The fact that Uwera rushed her husband to hospital, delivered him there before he died, informed relatives immediately cannot just be dismissed as mere acting. A callous person, would have had to wait and not rush to call and reach out to family to have the deed succeed. This is not what Uwera did. She run as fast as she could to secure the life of her husband. For this to be discounted, is a malignant miscarriage of justice, that will haunt the country, because the precedent set here leads us to conclude that, Uwera fore told what the doctor’s were going to be able to do, or the judge wants us to believe that she conspired with them?
    Mutatis mutandis, the fight over property cannot just be dismissed the way Judge Kasigwa did The murder case arises after Uwera refuses to hand over the property. This is a grounding fact, which should have guided the judge to toss the case.
    Let me add that we might dislike her in-Law in the names Kale Kayihura, but there are bigger hands pulling the threads from state house in this matter. Also on the street side thre those who are in the “she deserves it” because she is of Rwandese extraction. This is so flawed! Whether Uwera is friends with people we do not like, what ethinic group she belong to, does not make her guilty. Those of us who want freedom, we will be safest if we start by safeguarding the rights of our enemies or people we don’t like.

  2. okem solomon ezra,

    George thank you for your opinion but i must disagree with your idea that the lawyer should have alluded to her mental state arising out of the breakdown in her marriage which might have amounted to diminished responsibility in law. If i was the prosecutor handling such a matter then i might as well say that the accused person was due to the breakdown of her marriage obsessed with killing the deceased.

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