[2022] UGHC 145

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT-PORTAL HIGH COURT CIRCUIT SITTING IN KYENJOJO HCT-01-CR-SC-0239-2019** 5 **UGANDA=================================PROSECUTOR**

**VERSUS**

**ALITUHA CHRISTOPHER===========================ACCUSED**

# **BEFORE HON. JUSTICE VINCENT WAGONA** 10 **JUDGMENT**

# **1.0. INTRODUCTION**

The accused is indicted for murder c/s 188 & 189 of the Penal Code Act. It is alleged that Alituha Christopher and others still at large on the 18th day of February 15 2018 at Kijogobya Village in the Kyegegwa District murdered Makune Abudalla.

## **2.0. SUMMARY OF THE FACTS**

The deceased was aged about 11 years. The accused was a casual worker for the parents of the deceased and lived with the family. When the deceased would not be 20 at school, he would graze cows with the accused and was always in his company. On 18/2/2018 in the evening after bringing cows home from grazing, the accused left with the deceased who did not return. The accused became the first suspect and he was arrested. The body of the deceased was found on the basis of information from the accused. The accused admitted to committing the offence in a Charge and


Caution Statement that was admitted after a trial within a trial. In his defence the accused denied the offence and also denied ever knowing or working for the complainants.

#### 5 **3.0. THE BURDEN AND STANDARD OF PROOF**

The burden of proof is always on the Prosecution. The Prosecution has the duty to prove each of the ingredients of the offence and generally this burden never shifts onto the accused, except where there is a specific statutory provision to the contrary. (see **Woolmington vs D. P. P. [1935] A. C. 462**, and **Okethi Okale &**

10 **Ors. vs Republic [1965] E. A. 555**). This is not one of those cases where the burden of proof shifts to the accused to prove his innocence.

The standard of proof is proof beyond reasonable doubt. All the essential ingredients of the offence are to be proved beyond reasonable doubt. This standard 15 does not mean proof beyond a shadow of doubt. The standard is achieved if having considered all the evidence, there is no possibility that the accused is innocent. In **Miller vs Minister of Pensions [1947] 2 All E. R. 372** at page 373 to page 374, Lord Denning stated that:– *"The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability.* 20 *Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: 'of course it is possible but not in the least probable', the case is proved*

25 *beyond reasonable doubt; but nothing short of that will suffice."*


#### **4.0. EVALUATION OF EVIDENCE**

Evidence is evaluated as a whole. The Court considers evidence of both the Prosecution and the Defence relating to each of the ingredients before coming to a 5 conclusion. The Court should not consider the Prosecution evidence in isolation of the evidence presented on behalf of the accused. In **Abdu Ngobi vs Uganda,**

- **S. C. Cr. Appeal No. 10 of 1991**, the Supreme Court expressed itself as follows, with regard to treatment of evidence: *"Evidence of the Prosecution should be examined and weighed against the evidence of the Defence so that a final* - 10 *decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the Prosecution, and decide whether the Defence has raised a reasonable doubt. If the Defence has successfully done so, the accused must be acquitted; but if the* - 15 *Defence has not raised a doubt that the Prosecution case is true and accurate, then the witnesses can be found to have correctly identified the appellant as the person who was at the scene of the incidents as charged."*

#### **5.0. THE INGREDIENTS OF THE OFFENCES**

- 20 On a charge of murder, the Prosecution has to prove each of the following essential ingredients beyond reasonable doubt: - **(i) That the death of a human being occurred.** - **(ii) That the death was caused unlawfully.** - **(iii) That the death was caused with malice aforethought.** - 25 **(iv) The accused participated in the commission of the crime.**


#### **6.0. REPRESENTATION:**

The Prosecution was represented by Kakuru Joel a Senior State Attorney in the Office of the Director of Public Prosecutions. The Defence was represented by Counsel Robert Luleti on State Brief. The prosecution filed written submissions 5 which I have considered but the defence did not file submissions.

#### **7.0. THE EVIDENCE IN THIS CASE**

The Prosecution called the following witnesses: PW1 AISHA TUMWEBAZE; PW2 KASANGAKI BERNARD; PW3 BUMALI KAHWA; PW4 AIP 10 BUSINGYE VINCENT; PW5 D/AIP BAGONZA GIDION; PW6 DR. MARTIN YESTA; PW7 D/IP MAKASI SIRAJ BAYUNGA. The accused made an unsworn statement.

#### **1. Whether death of a human being occurred**

#### 15

The first element that the Prosecution had to prove is that the death of a human being occurred. Death may be proved by production of a postmortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body.

**PW1 AISHA TUMWEBAZE** the mother of the deceased testified that on 18/2/2018 in the evening after bringing cows home from grazing, the accused left home with the deceased and the deceased did not return. PW1 reported a case of a


missing person to police. The dead body of the deceased was found at a place near a church on 19/2/2018 buried in a shallow grave covered with soil.

**PW2 KASANGAKI BERNARD** testified that the deceased was his nephew and 5 that on 19/2/2018 he learnt that the deceased had gone missing. PW2 testified that he reached the place when the deceased's body had just been exhumed. The body was later taken to Kyegegwa Hospital for post-mortem examination. In cross examination PW2 stated that the body was discovered at around 7.00pm.

- 10 **PW3 BUMALI KAHWA** the father of the deceased testified that on 18/2/2018 at around 7.00pm, he noticed that the deceased was missing. Eventually, the dead body of the deceased was discovered buried in a shallow grave at a place on land next to a church. The police took the body to Kyegegwa hospital for post-mortem examination. Later, the body was handed over to the family for burial. - 15

**PW4 AIP BUSINGYE VINCENT** the then OC of Kijogobya Police Post testified that on 19/2/2018 at 12:15 after midnight he received a report from PW1 that her son the deceased had gone missing. PW4 testified that he later leant that the body of the deceased had been found and he also went to the scene where he observed 20 that the body of the deceased had been removed from a shallow grave.

**PW5 D/AIP BAGONZA GIDION** testified that he visited the scene in the company of the Scenes of Crime Officer (SOCO) on instructions of D/AIP Makasi Bayunga who was the OC CID of Kyegegwa District. They put the body of the 25 deceased on a police vehicle and transported it to Kyegegwa Hospital for postmortem examination.


**PW6 DR. MARTIN YESTA** testified that he carried out the post-mortem examination on the dead body of the deceased on 19/2/2018 and prepared a postmortem report (Exhibit PE1). The deceased was found to be 11 years old.

5 I am satisfied based on the above evidence that that the prosecution has proved this element of the offence beyond reasonable doubt.

## **2. Whether the death was caused unlawfully**

- 10 The Prosecution had to prove further that the death of the deceased was unlawfully caused. Unless accidental or authorized by law, homicide is always unlawful. (See **Gusambizi s/o Wesonge Versus Rep. [1948] 15 EACA 65**). The prosecution contends that this was a homicide while the defence is a denial. - 15 **PW2 KASANGAKI BERNARD** testified that at the time the body of the deceased was recovered, he observed that the neck appeared to have finger marks and the deceased appeared to have been strangled.

**PW3 BUMALI KAHWA** the father of the deceased testified that at the scene 20 where the body was recovered, he observed that the deceased had been strangled and had defecated in his trousers.

**PW6 DR. MARTIN YESTA** testified that he carried out the post-mortem examination on the dead body of the deceased on 19/2/2018 and prepared the post-25 mortem report (Prosecution Exhibit PE1). In his findings, the neck was soft and the


throat was disconnected; the tongue was protruding out; the possible cause of death was that he was strangled and suffocated to death. That the softening of the neck was due to twisting which can lead to spinal code injury.

5 **PW1 AISHA TUMWEBAZE** the mother of the deceased testified that at the burial of the deceased, the Doctor reported that the deceased had been strangled and that he had a broken neck.

I am satisfied based on the evidence of the cause of death of the deceased being 10 strangulation, that his death was caused unlawfully.

# **3. Whether the death was caused with malice aforethought**

The next ingredient for consideration is whether there was malice aforethought. In 15 Criminal Law, malice aforethought is deemed to be established from evidence of circumstances of the intention to cause the death of any person or of the knowledge that the act or omission causing death will probably cause the death of some person.

20 In particular, Section 191 of the Penal Code Act provides that:

*Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances— (a) An intention to cause the death of any person, whether such person is the person actually killed or not; or*


*(b) Knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused.*

In order to determine whether there was an intention to cause death or that the person knew that his act will probably cause death, the Court can consider the weapon used, the part of the body targeted, the degree of injury and the conduct of the accused before and after the act. (See **R. Versus Tubere s/o Ochieng [1945]** 10 **EACA 63**). If a vulnerable part of the body is targeted, then the intention to cause death is inferred.

**PW2 KASANGAKI BERNARD** testified that at the time the body of the deceased was recovered, he observed that the neck appeared to bear finger marks 15 and that he appeared to have been strangled.

**PW3 BUMALI KAHWA** the father of the deceased testified that at the scene where the body was recovered, his observation was that the deceased had been strangled and that the deceased had defecated in his trousers.

**PW6 DR. MARTIN YESTA** testified that he carried out the post-mortem examination on the dead body of the deceased on 19/2/2018 and prepared a postmortem report (Prosecution Exhibit PE1). The findings were as follows: The neck was soft and the throat was disconnected. The tongue was protruding out. The 25 possible cause of death was that he was strangled and suffocated to death. That the softening of the neck was due to twisting which can lead to spinal code injury.


**PW1 AISHA TUMWEBAZE** the mother of the deceased testified that at the burial of the deceased, the Doctor reported that the deceased had been strangled and that he had a broken neck.

5 The neck is a delicate part of the body. I am satisfied that the person who strangled the deceased by twisting the neck leading to spinal code injury, and disconnecting the throat, leaving the tongue protruding out, intended to cause his death and he knew that these acts would probably cause death. I am satisfied that the Prosecution has proved beyond reasonable doubt that the persons who caused the 10 death of the deceased did it with malice aforethought; that is, with intention to cause death; or with knowledge that their acts would probably cause death.

#### **4. Whether the accused participated in the crime**

15 This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the accused at the scene of crime as the perpetrator of the offence.

**PW1 AISHA TUMWEBAZE** the mother of the deceased testified that the accused was their herdsman. That from time to time the accused would leave and 20 later return to continue working and that at the time of this incident he had recently returned in the past one month. PW1 testified that whenever the deceased would not be at school, he would graze cows with the accused and he would always move with the accused as they were very close to each other. The witness testified that the deceased never used to move around except with the accused. PW1 told court 25 that on 18/2/2018 in the evening after bringing cows home from grazing, the


accused left home with the deceased and they stopped by the shop of PW1 and then they left together but the accused returned alone and could not account for the whereabouts of the deceased. The deceased did not return. PW1 reported a case of a missing person to police and mentioned the accused as the suspect. The witness 5 said that she suspected the accused because he was always with the deceased and of recent, the accused's discussions suggested that he (accused) had started believing in human sacrifice for riches; that he would be heard saying that people sacrifice human beings to get money. PW1 told court that the accused joined the search for the deceased but she feared that he would run away, and she caused his 10 arrest. Following the arrest of the accused on 18/2/2018, PW1 got information that the accused had admitted to the killing and had provided information that would lead to the discovery of the dead body and she joined a search party to the scene. The scene was on someone's land at a place next to a church where the body was found on 19/2/2018 buried in a shallow grave covered with soil. PW1 stated that 15 the search party included the OC of Kijogobya Police Post called Busingye (PW4) and the LC Chairman. In cross examination the witness elaborated that the accused used to speak evil things saying that there were people who sacrificed children to get money and that this made her suspicious of the character of the accused. The witness said that based on her suspicions, she had warned her husband to stop 20 employing the accused, but the accused had pleaded with her, and she had allowed him to continue working. In further cross examination the witness said that the deceased had gone missing at 7.00pm.

**PW2 KASANGAKI BERNARD** testified that he knew the accused as a worker of 25 PW3 Bumali Kahwa who is his elder brother. PW2 said that the deceased was his nephew and that he received information that the deceased had gone missing and

 on 19/2/2018, he joined a search party and later while they were at Kijogobya police post, the OC of the police post one Busingye (PW4) told them that he had received a telephone call directing him to where the body of the deceased could be found at Kijongobya Church of Uganda in the land of Sserwadda Gerald in a pit 5 covered with soil. The search party then moved to the place as directed. The witness testified that he reached the place when the deceased's body had already been exhumed and many people had gathered. In cross examination the witness stated that the body was discovered at around 7.00pm.

10 **PW3 BUMALI KAHWA** the father of the deceased testified that he knew the accused because the accused was his worker. That on 18/2/2018 he was at his shop in the trading center with the accused and the deceased and at around 6.00pm he sent them to go and take cows home and they went and returned. At around 7.00pm, PW3 noticed that the deceased was missing. PW3 soon met the accused 15 seated at a nearby pub without the deceased and asked him about the whereabouts of the deceased but the accused replied that he had not seen the deceased. PW3 joined by the accused searched around for the deceased but they failed to get him. The witness told court that he suspected the accused to have caused the disappearance of the deceased as they (the accused and the deceased) were always 20 together and they had him arrested. The witness later got information that the accused had admitted to the killing and given directions that would lead to the recovery of the body; that this information had been supplied to Kijogobya Police Post from Kyegegwa Police Station. PW3 stated that he then joined the search party to the scene which was a place on land belonging to Sserwadda, which was 25 next to the protestant church where the deceased's body was recovered from a shallow grave. PW3 told court that he used to hear from people that the accused


would say that he loved money and that he would join the Illuminati, and that it was for this reason that he believed that the accused could kill the deceased. In clarification sought by court, the witness stated that he last saw the accused with the deceased at about 9.00pm at his shop. In cross examination the witness 5 clarified that he operated a shop and butchery that were about 50 meters apart.

**PW4 AIP BUSINGYE VINCENT** testified that he was the OC of Kijogobya Police Post when on 19/2/2018 at 12:15 after midnight he received a report from PW1 that her son the deceased had gone missing. He advised PW1 to cause the 10 accused to come to the police post and he was arrested and later when he got information that the residents wanted to attack the police post and lynch the accused, he transferred the accused to Kyegegwa Police Station. PW4 testified that at this time, the search for the deceased was ongoing and that the DPC at Kyegegwa Police instructed him to join the search party and he later leant that the 15 body of the deceased had been found between the land of Sserwadda and Kijongobya Church of Uganda; that he went to the scene where he observed that the body of the deceased had been removed from a shallow grave. He said that the body had human feaces on the trousers. That he notified Kyegegwa Police Station who sent PW5 and SOCO to come and they took the body away and Kyegegwa 20 Police Station took over the investigations.

**PW5 D/AIP BAGONZA GIDION** testified that he visited the scene in the company of the SOCO on instructions of D/AIP Makasi Bayunga who was the OC CID of Kyegegwa District. They put the body on a police vehicle and transported it 25 to Kyegegwa Hospital for post-mortem examination which was conducted in his presence and he observed that the body was that of a young man and was still


fresh. PW5 told court that the next day he recorded a plain statement from the accused who admitted to killing the deceased arising from his (accused's) belief in Illuminati. The witness stated that because the accused admitted to the killing, he referred the accused to D/AIP Makasi who recorded his Charge and Caution 5 Statement. He later submitted the file to the Office of the DPP for perusal and legal advice.

**PW6 DR. MARTIN YESTA** testified that he examined the accused and found him to be of the apparent age of 19 years, with normal mental status but appeared 10 to have psychological effects due to his belief in Illuminati, which required future evaluation by a psychologist. The witness explained that it was the accused who told him that he was Illuminati. The witness said he found no injuries on the accused's body.

15 **PW7 D/IP MAKASI SIRAJ BAYUNGA** testified that in 2018 he was a D/AIP and was stationed at Kyegegwa Police Station when on 19/2/2019, PW5 requested him to record a Charge and Caution Statement from the accused who wanted to confess. The witness told court that he then went and occupied the radio room which was convenient and available because the user of that room was away; that 20 he then recorded the Charge and Caution Statement of the accused in the Luganda language and the accused signed on it by writing his name after the contents had been read back to him. When the prosecution sought to tender the said Charge and Caution Statement in evidence, Counsel for the accused objected on the grounds that the accused was a Mutoro and was not conversant with Luganda; that he did 25 not know how to read and write and could not sign but only thumb mark; that the signature attributed to him was not his; and that he did not make a confession


before the witness. Following a trial within a trial, the Charge and Caution Statement was admitted in evidence as **Prosecution Exhibit PE3A (Rutoro versions) and PE3B (English translation)**. The Charge and Caution Statement states as follows:

# **ALITUHA CHRISTOPHER M/A AGED 19 YEARS A MUSICIAN MUTOORO BY TRIBE RESIDENT OF KABUGANGARA VILLAGE NYENDO-MASAKA MUNICIPALITY IN MASAKA DISTRICT**

#### **CHARGE**

10 **YOU ALITUHA CHRISTOPHER before me D/AIP Makasi Bayunga are charged that on 18/02/2018 at Kijongobya village in Kyegegwa District, with malice aforethought, you killed MAKUNE ABUDALLAH. This is an offence termed murder c/ss 188 and 189 of the Penal Code Act. Have you understood the charge?**

15 **Accused: Yes Sign: Recorded by: D/AIP MAKASI**

#### **CAUTION**

**You need not say anything unless you wish but whatever you do say will be** 20 **put in writing and may be given as evidence during your trial. Have you understood the caution? Accused: Yes Sign Recorded by: D/AIP MAKASI**

**Do you wish to say anything about the charge?**

25 **Accused: Yes Sign**

**Recorded by: D/AIP MAKASI**


**I was born at Butunduzi in Kyenjojo District. In the year 2012 I went to Masaka and lived at Nyendo. That is where I joined the Abasamavu Production Fire Crew Entertainment which is a group of musicians. We are led by Adolf Kamugisha but who is known as** *"Rasta Saulo"***. During the year** 5 **2013 my mentors wanted me to join Illuminati group but I refused. In 2017 the month of January I joined the Illuminati led by** *Rasta Saulo***. I was given new names as** *V. Enimani Edivike***. I was then directed to sacrifice a child. They told me after that it would be easy for me to know languages that I have never learnt. They also told me I would be skillful in music and that wealth** 10 **would come easily. I decided to return home to Butunduzi to fulfill that. In February 2018 I left Butunduzi and went to Kijongobya for casual work. I have been working for BUMALI UMARU as a shamba man. I have been residing in his home. On 18/02/2018 at 19:30 hours I left home with MAKUNE ABUDALLAH. We went to Kijogobya Trading Centre. I had** 15 **negotiated with one MABARE a Rwandese to kill for me that boy. I had given Mabare cash shillings 500,000/= for that mission. I met Mabare at the centre of Kijongobya and I handed the boy to him, he took him to kill him. I just wanted the boy's soul to sacrifice it to Illuminati. After Mabare accomplishing the mission he reported back to me that the duty is done. He** 20 **said he killed the boy on the lower side of Sserwadda's well and buried this boy on the land of the Anglican Church. At home Makune's people started asking me for their son that very night because I was the one that had moved with him. I have always been moving with that boy as my friend. As a result they handed me to Kijongobya Police. At Kijongobya I talked to the O/C** 25 **asking him to call police from the main station that I would then tell them the truth. I feared to confess from there that I killed the boy because people would kill me. On 19/02/2018 residents started throwing stones to Police in order to remove me from custody to kill me. At that moment Police from**


**Kyegegwa arrived and rescued me. After reaching Kyegegwa Police Station I narrated this story to the senior officers thereat and they asked me to have my words recorded. The above stated is the truth.**

5 **Sign: Recorded by: D/AIP MAKASI**

## **8.0. THE DEFENCE**

The accused denied committing the offence and asserted that he did not know the 10 complainants and had never been their employee. Both in the trial within a trial and in the main trial, the accused maintained that he was not from Kijongobya village but that being a hawker, on 18/2/2018 he had gone there for the first time to hawk his merchandise. The accused stated that in the evening at about 7.30pm, he met a group of people who had arrested a suspect and he was also arrested and they were 15 beaten and his goods taken. They were taken to Kijongobya Police Post and later he was transferred to Kyegegwa Police station. The accused asserted that while at Kyegegwa Police Station, he did record a statement in Rutoro before a police officer who introduced himself by name as Kasese. He said he had never recorded a statement in Luganda before PW7 or written his names or signed on any such 20 statement and that he did not know and had never met PW7 except when he came as a prosecution witness. That the statement recorded by PW7 was not his statement.

## **9.0. THE BASIS OF THE CASE FOR THE PROSECUTION**


The prosecution in this case relies on the evidence that it was the accused that was last seen with the deceased and the evidence of the Charge and Caution Statement of the accused as amounting to a confession.

## 5 **9.1. 'Last seen' doctrine**

According to the decision in **Tajudeen Iliyasu Vrs The State (Supra), "…..***creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death…. Thus where an accused person was the last person to be seen in the company of the*

10 *deceased person, they have the duty to give an explanation relating to how the latter met his or her death. In the absence of such explanation, a trial court …..will be justified in drawing the inference that the accused person killed the deceased person".*

In this case it is the evidence of PW1 and PW3 the parents of the deceased that the 15 accused was the person who was last seen with the deceased at the trading center in the early part of the night and when asked about the whereabouts of the deceased, he failed to account for the deceased's whereabouts.

## **9.2. Evidence of confession**

20 In **Mumbere Julius versus Uganda, SCCA No. 15/2014**, the Supreme Court held that:

*"Regarding its admissibility, the appellant in the course of his trial denied having made the charge and caution statement. He also denied that the signature on the charge and caution statement was his although his counsel*


*claimed that he was forced to sign a pre-prepared statement the contents of which he did not know. This Court in Matovu Musa Kassim v. Uganda, Criminal Appeal No. 27 of 2002 reiterated the law governing retracted and repudiated confessions as succinctly stated in Tuwamoi v. Uganda that:*

- 5 *"A trial Court should accept any confession which has been retracted or repudiated with caution and must before finding a conviction on such a confession be fully satisfied in all circumstances of that case that the confession is true.""* - 10 In the case of **Festo Androa Asenua and Anor. Versus Uganda, SCCA No. 1/1998,** the Supreme Court laid down the following procedure for recording Extra Judicial Statements and guided that the same procedure should be followed with necessary modifications when recording the Charge and Caution Statements:

## *"The following procedure shall be adopted:*

15 **(1)** *it must be remembered that the prisoner is not on trial. It follows that such statement must not be taken in any court as part of court proceedings.*

**(2)** *No police officer should be present in the chambers of Magistrate. The police officer escorting the prisoner should leave after informing the* 20 *Magistrate of the reason for taking the prisoner before him, that is, the offence with which he is charged or the offence he is suspected of having committed, as the case may be. The police officer should then wait outside the chambers out of sight.*

**(3)** *The Magistrate should inquire of the prisoner the language which* 25 *he understands. If it is one which the Magistrate does not know he should send for an interpreter.*


**(4)** *The charge, if any, or the nature of the suspicion for which he has been arrested, shall then be explained to the prisoner.*

**(5)** *The prisoner should be asked if he wishes to say anything about the charge or the offence he is suspected to have committed, and should be* 5 *told that HE IS FREE TO MAKE, OR NOT MAKE, ANY STATEMENT.*

**(6)** *The Magistrate must satisfy himself by all reasonably possible means that the statement about to be made to him is entirely voluntary. It must not be assumed that he is going to make a confession. The document containing the statement should be prefaced by a memorandum* 10 *containing notes of the foregoing and the steps which the magistrate takes to satisfy himself that the statement is voluntary. This prefatory part will enable the magistrate to refresh his memory, in the event of his being called at the trial to prove the statement.*

**(7)** *It is advisable that a Magistrate who is about to take a statement* 15 *should administer a caution the normal form:*

> *"You need not say anything unless you wish but whatever you do say will be taken down and may be given in evidence at yourtrial".*

**(8)** *The person wishing to make a statement should not be asked whether he wishes to be sworn or affirmed; but if he requests the* 20 *magistrate without suggestion from the Magistrate, to place him on oath or affirmation, this may be done but the prefatory memorandum must clearly state so.*

**(9)** *The statement should be recorded in the language which the prisoner chooses to speak. This may be done through an interpreter or the* 25 *magistrate may himself, if he is fully conversant with the vernacular being used, record it in the same language. The prisoner is not to be*


*cross-examined when he is making the statement. Any question put to the prisoner must be designed to keep the narrative clear, and the question so asked must be reflected in the statement. It must be understood that the role of the Magistrate simply is to record accurately the prisoner's story, if* 5 *he chooses to make a statement.*

> **(10)** *The vernacular statement should be read back to the prisoner incorporating any corrections he may wish to make.*

**(11)** *The prisoner should certify the correctness of the statement by signing or thumb-printing it. The Magistrate and the interpreter, if any,* 10 *should counter-sign it. If the statement covers more than one sheet of paper all sheets should be so signed or thumb-printed by the prisoner.*

> **(12)** *An English translation of the vernacular statement including the prefatory memorandum, should then be made by the magistrate or the interpreter, as the case may be.*

15 **(13)** *After the foregoing has been complied with the prisoner should be handed back to the police officerwho has been waiting outside the Chambers.*

- **(14)** *The originals of the statement - vernacular and its English translation - should also be handed over to the police.* - 20 **(15)** *Section 24 speaks of "immediate presence of a magistrate". Any Magistrate is competent to take a statement in the manner aforesaid. It must be understood that the qualification of a Magistrate to take an extra-judicial statement is a personal one, and is not tied to his territorial jurisdiction.* - 25 **(16)** *Whereas it is expected that the police will take prisoners before a magistrate for this purpose during the usual working hours, he may*

 *nevertheless be called upon at any time to take such statements. Should this be after office hours the Magistrate should, move to his official chambers, or, alternatively, sit at any other private place (excluding the police premises) and, after procuring any -Civilian* 5 *interpreter, should one be necessary, and taking note of his name, profession and address in the prefatory memorandum proceed to record the statement in accordance with the procedure set out above.*

> **(17)** *Care should be taken that as far as possible the magistrate who takes such a statement does not subsequently try the prisoner".*

- 10 *We suggest that pending the making of Rules by the Minister as required by s.24 (2) of the Evidence Act the Police should with necessary modifications follow these guidelines when recording statements from suspects."* - During the testimony of PW7 D/AIP MAKASI SIRAJ BAYUNGA the 15 prosecution sought to tender in evidence and rely upon a Charge and Caution Statement recorded by the witness, attributed to the accused. Counsel for the accused objected on the grounds that his instructions from the accused were that the accused was not conversant with Luganda, which was the language in which the statement had been recorded, the accused being a Mutoro; that the accused 20 could not read and write and as such, he could not have written his names on the statement; and that any signature contained in the statement attributed to the accused, did not belong to the accused. A trial within a trial was then held to give the accused a chance to establish by evidence, his grounds of objection. The purpose of the trial within a trial was to decide upon the evidence of both sides, 25 whether the Charge and Caution Statement should be admitted.


The prosecution called D/AIP MAKASI SIRAJ BAYUNGA as PW1 and the only witness in the trial within a trial. PW1 testified that on 19/02/2018, D/SGT Bagonza brought the accused before him to record his Charge and Caution Statement after establishing that the accused was confessing to the offence. That he 5 received the accused in the Radio Room as the room was available because the Radio Operator was away. That it was only him and the accused in the room. That the accused was OK, he had no injuries, did not look worried and was communicating freely. That he introduced himself to the accused and told the accused that he was on a murder charge where it was alleged that he had murdered 10 Makune Abudalla and asked the accused in Rutoro, as to what language he was comfortable with. That the accused responded that he was more comfortable with Luganda as he had just returned from Nyendo in Masaka District where he had been since 2012. That he proceeded to conduct the process and record the statement while speaking with the accused in Luganda as he too knew Luganda 15 because he had served in Buganda for 23 years. The witness told court that he spoke to the accused in Luganda and his responses were in Luganda. PW1 stated that he proceeded as follows: he read and explained the charge to the accused; read and explained the caution to the accused; asked the accused whether he wanted to record a statement and the accused accepted to record a statement; he recorded the 20 statement of the accused in Luganda as freely narrated by the accused; read the statement back to the accused in Luganda; the accused acknowledged that he had understood the charge, and the caution by writing his names against the charge and against the caution; and acknowledged the truth of the contents of the statement after it had been read back to him, by writing his name at the end of the statement; 25 the witness said that he thereafter, wrote down the English translation. In cross examination PW1 told court that the accused told him that he was a Mutoro from


Butunduzi in Kyenjojo District but that he was more comfortable speaking Luganda and that he spent about 30 minutes with the accused. That D/Sgt. Bagonza left the room after presenting the accused to him. That when the accused was presented to him, PW1 did not inform the accused that he had a right to a 5 lawyer as it was a daily practice of the police during suspects' parade in the morning, to inform all suspects that they had a right to a lawyer.

The accused testified that upon his arrest at Kijongobya Trading Center, he was assaulted by the residents before he was handed over to Kijongobya Police Post 10 where he spent a night and was transferred to Kyegegwa Police Station where a police officer going by the name Kasese recorded a statement from him in Rutoro which was read back to him and he thumb printed it. The accused stated that in his statement he told the police that he did not know the complainants, that he had no knowledge of the offence and that he had never been an employee of the 15 complainants. The accused asserted that he recorded his statement before an officer called Kasese. The accused asserted that he did not record a statement before D/IP Makasi Siraji Bayunga in Luganda and when the statement was shown to him he asserted that it was not his statement and that he did not know it. He maintained that the statement he recorded was recorded by Kasese in Rutoro and he thumb 20 printed it and that the one shown to him did not bear his thumb print. The accused asserted that he did not tell the recording officer that he was more comfortable speaking Luganda and that he had never lived in Masaka or even gone there. He asserted that he had always been a hawker but had never been a singer. In cross examination the accused even denied the age of 19 years attributed to him in the 25 charge and caution statement; he said he was now 33 years old and that he had told the police at the time that he was 28 years old. He said he believed the only reason


for his arrest was because he was new in the area. He denied ever being taken for medical examination. He maintained that he had never interacted with D/IP Makasi Siraji Bayunga and did not know how the officer came to obtain his contact details that he recorded. That he did not know Bumali or his wife who had testified in 5 court that the accused was once their employee; that he saw them for the first time in court when they came to testify against him. That he had never seen the Doctor who came to court and claimed that he examined the accused and found him to be aged 19 years at that time. In answer to court the accused denied telling the police as recorded in his particulars in the charge sheet that he was from Masaka.

Under Section 24 of the Evidence Act, a confession made by an accused person is irrelevant if the making of the confession appears to the court, having regard to the state of mind of the accused person and to all the circumstances, to have been caused by any violence, force, threat, inducement or promise calculated in the 15 opinion of the court to cause an untrue confession to be made. Under Section 25, if such confession as is referred to in section 24 is made after the impression caused by any such violence, force, threat, inducement or promise has, in the opinion of the court, been fully removed, it is relevant.

20 After evaluating the evidence of the prosecution and the accused adduced during the trial within a trial, I was satisfied that the recording officer properly complied with the procedure for recording Charge and caution Statements. I was further satisfied that the making of the Charge and Caution Statement of the accused, having regard to the state of mind of the accused person and to all the 25 circumstances, was not caused by any violence, force, threat, inducement or promise calculated to cause an untrue confession to be made. I found that the


accused did record a Charge and Caution Statement before D/AIP MAKASI SIRAJ BAYUNGA. I found that the accused voluntarily chose to use and communicated with PW1 in Luganda although he had acknowledged that he was a Mutoro, and that both the accused and the witness knew and ably communicated in 5 Luganda. I found that the name or signature on the charge and caution statement was that of the accused written by the accused in acknowledgement that he had understood the charge and the caution; that he freely accepted to make a statement that was recorded in Luganda as narrated by him; and that the statement was read back to him in Luganda which he understood and acknowledged the statement as 10 being a true and correct statement from him. The accused lied to court when he denied his stated age of 19 years at the time of the offence as he looked much younger than the 28 years that he claimed was his age at the time of his arrest; PW6 examined him and found the accused to have been aged 19 years at the time (Exhibit PE2). The accused lied that he had never interacted with the officer who 15 recorded his statement; and he lied that he recorded his statement before a person called Kasese. I find that the confession obtained from the accused was a true confession.

In the case of **Andrew Walusimbi & 3 others Criminal Appeal No. 28 of 1992** 20 **S. C. U** *(unreported) at page 12 the principle was repeated and added that the essence of section 25 of the Evidence Act "is not simply whether the statement is apparently true. Attention should be paid to the manner in which statement was made: Whether the circumstances made it likely that an untrue confession would be made, or whether the statement was voluntarily made and gave some* 25 *grounds for believing it to be true. But even if admissible the usual safeguards should still be observed. The rules concerning corroboration … are still to be*


# *acted upon.* **Kenyarithi s/o Mwangi Vs R [1956] 23 EACA 422***." (Emphasis added).*

In this case, the confession statement of the accused is corroborated in all material 5 particulars as follows:

- (i) Whereas the accused looked much younger than the age of 28 years that he claimed in court as his age at the time of his arrest, the information supplied by the accused in his Charge and Caution Statement that he was aged 19 years is corroborated by PW6 the Doctor who examined him at 10 the time, putting his age at 19 years (see Prosecution Exhibit PE2). - (ii) The reference to the accused's belonging to Illuminati referred to in the accused's Charge and Caution Statement was also told by the accused to PW6 who examined the accused on Police Form 24 (Exhibit PE2). PW3 also used to hear from people that the accused would say that he loved 15 money and that he would join the Illuminati, and that it was for this reason that he believed that the accused could kill the deceased. Further, when PW5 recorded a plain statement from the accused, he admitted to killing the deceased arising from his (accused's) belief in Illuminati. - (iii) The reference in the statement to fact that the accused had been 20 indoctrinated to believe in human sacrifice, had also been noticed by PW1 in the strange utterances of the accused to the effect that people sacrifice human beings or children to get money. - (iv) The reference in the statement to the fact that the accused was employed by the complainants and lived in their home and that on 18/02/2018 he 25 left home with the deceased and they went to Kijongobya Trading


Center, is corroborated by the complainants PW1 and PW3 who had employed the accused and gave evidence to the same effect and that the accused moved with the deceased who never returned.

- (v) The reference in the statement to the location where the body was buried 5 being the land at the church and the circumstances surrounding his arrest are corroborated by different witnesses who participated in the search and found the body in the same area and testified about the arrest of the accused. - (vi) The reference in the statement to the fact that the accused and the 10 deceased were close to each other is corroborated by PW1 and PW3 the parents of the deceased. - (vii) The reference in the statement to the reason for the accused's prompt transfer from Kijongobya to Kyegegwa police station is corroborated by PW4 who testified that it was meant to protect the accused from being 15 lynched by the residents.

I am therefore fully satisfied that the Charge and Caution Statement of the accused amounted to a confession and that the confession of the accused was voluntarily made.

#### 20 **10.0. CONCLUSION**

After evaluating all the evidence as a whole, I find that the evidence that the accused was the person that was last seen with the deceased alive, when taken together with the evidence of the confession of the accused that is well 25 corroborated by the evidence of prosecution witnesses, places the accused at the


scene of crime as the perpetrator. I found the evidence of the prosecution witnesses credible and believable as it was consistent and remained so in cross examination and was well corroborated. The evidence of the accused on the other hand was full of obvious lies and reckless denials. He lied to court that he had never known or

5 worked for the complainants and also that he had never interacted with or recorded a statement before PW7 D/IP MAKASI SIRAJ BAYUNGA. I believe the case of the prosecution and reject the defence of the accused.

I find that the prosecution has proved the case of murder against the accused 10 beyond reasonable doubt. In agreement with the joint opinion of the Lady and Gentleman Assessors, I find the Accused Guilty of Murder as Indicted, and convict him accordingly.

Vincent Wagona

15 **High Court Judge FORT-PORTAL**

**DATE: 7/9/2023**


### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

#### **HCT-01-CR-SC-223/2019**

**UGANDA…………………………………..…………PROSECUTION**

#### 5 **VERSUS**

### **A1. MUHEREZA RAUBEN**

## **A2. BARYEIJA JUSTUS alias YUSI………………………. ACCUSED**

### **BEFORE HON. JUSTICE VINCENT WAGONA**

#### **SENTENCE AND REASONS FOR SENTENCE**

In sentencing the convicts, the following factors have been considered:

Under the Penal code act, the maximum punishment for murder is death. I am also guided by the Constitution (Sentencing Guidelines for Courts of 15 Judicature) (Practice) Directions, 2013, and case law.

Under Paragraph of the Sentencing Guidelines17, the court may only pass a sentence of death in exceptional circumstances in the "rarest of the rare" cases where the alternative of imprisonment for life or other custodial 20 sentence is demonstrably inadequate. Under Paragraph 18, the "rarest of the rare'' cases include cases where— (a) the court is satisfied that the


commission of the offence was planned or meticulously premeditated and executed; (b) the victim was-- (i) a law enforcement officer or a public officer killed during the performance of his or her functions; or (ii) a person who has given or was likely to give material evidence in court proceedings; (c) the 5 death of the victim was caused by the offender while committing or attempting to commit-- (i) murder; (ii) rape; (iii) defilement; (iv) robbery; (v) kidnapping with intent to murder; (vi) terrorism; or (vii) treason; (d) the commission of the offence was caused by a person or group of persons acting in the execution or furtherance of a common purpose or conspiracy; (e) the 10 victim was killed in order to unlawfully remove any body part of the victim or as a result of the unlawful removal of a body part of the victim; or (f) the victim was killed in the act of human sacrifice. I have found no extremely grave circumstances as would to justify the imposition of the death penalty.

- 15 Under The Constitution (Sentencing Guidelines For Courts Of Judicature) (Practice) Directions, 2013, the sentencing starting point for murder is 35 years and the sentencing range is from 30 years' imprisonment up to death sentence. - 20 Under Paragraph19 regarding the sentencing ranges in capital offences: (1) The court shall be guided by the sentencing range specified in Part I of the Third Schedule in determining the appropriate custodial sentence in a capital offence; (2) In a cases where a sentence of death is prescribed as the Maximum sentence for an offence, the court shall, consider the factors in

 paragraphs 20 and 21 to determine the sentence in accordance with the sentencing range.

Under Paragraph 20, in considering imposing a sentence of death, the court 5 shall take into account— (a) the degree of injury or harm; (b) the part of the victim's body where harm or injury was occasioned; (c) sustained or repeated injury or harm to the victim; (d) the degree of meticulous pre-meditation or planning; (e) use and nature of the weapon; (f) whether the offender deliberately caused loss of life in the course of the commission of another 10 grave offence; (g) whether the offender deliberately targeted and caused death of a vulnerable victim; (h) whether the offender was part of a group or gang and the role of the offender in the group, gang or commission of the crime; (i) whether the offence was motivated by, or demonstrated hostility based on the victim's age, gender, disability or other discriminating 15 characteristic; (j) whether the offence was committed against a vulnerable person or member of a community like a pregnant woman, child or person of advanced age; (k) whether the offence was committed in the presence of another person like a child or spouse of the victim; (l) whether there was gratuitous degradation of the victim like multiple incidents of harm or injury 20 or sexual abuse; (m) whether there was any attempt to conceal or dispose of



Under Paragraph 21, in considering imposing a sentence of death, the court shall take into account the following mitigating factors— (a) lack of premeditation; (b) a subordinate or lesser role in a group or gang involved in the commission of the offence; (c) mental disorder or disability linked to the 5 commission of the offence; (d) some element of self-defense; (e) plea of guilt; (f) the fact that the offender is a first offender with no previous conviction or no relevant or recent conviction; (g) the fact that there was a single or isolated act or omission occasioning fatal injury; (h) injury less serious in the context of the offence; (i) remorsefulness of the offender; (j) 10 some element of provocation; (k) whether the offender pleaded guilty; (l) advanced or youthful age of the offender; (m) family responsibilities; (n) some element of intoxication; or (o) any other factor the court considers relevant.

15 Under paragraph 23 Imprisonment for life is the second gravest punishment next to the sentence of death. Under paragraph 24 in capital offences, the court shall consider imposing a sentence of imprisonment for life where the circumstances of the offence do not justify a sentence of death. In determining whether the circumstances of an offence or offender justify 20 imposing a death sentence or imprisonment for life, court shall consider the factors aggravating or mitigating a death sentence.


The sentencing guidelines have to be applied bearing in mind past precedents of courts in decisions where the facts have a resemblance to the case under trial (see *Ninsiima v. Uganda Crim. C. A Criminal Appeal No. 180 of 2010*).

5 I have reviewed the following cases:

In the case of *Kaddu Kavulu Lawrence Vs Uganda, Criminal Appeal No. 72 of 2018***,** the appellant went to the house of the deceased and fatally cut the deceased with a *panga* because the deceased had taken up a woman who had 10 earlier cohabited with the appellant but they had since separated. He was convicted and sentenced to death. The Court of Appeal substituted his death sentence with life imprisonment which sentence was upheld by the Supreme Court.

15 In the case of *Ssekawoya Blasio v. Uganda SCCA 24/2014* the Supreme Court upheld concurrent life imprisonment terms for murder of 3 children aged 12, 10, and 8 years respectively.

In the case of *Rwalinda John v. Uganda SCCA 3/2015* the Supreme Court ²⁰ upheld a sentence of life imprisonment in a case of murder. The Supreme Court observed that the trial Court had considered the aggravating and mitigating factors like having been a first offender and took into account the one year and three month she spent on remand, the age of 67 years and prayer for leniency. That the trial Judge


considered the seriousness of the offence, the death of a toddler, the way the murder was carried out which culminated in the death among others.

5 In the case of *Mwesigye Richard & Another Vs Uganda, Criminal Appeal No. 246 of 2010*, the Court of Appeal maintained the sentences of life imprisonment meted out to the appellants for murder**.**

*In the case of Bukenya v. Uganda C. A Crim. Appeal No. 51 of 2007*, in its judgment of 22nd December 2014, the Court of Appeal upheld a sentence of

- 10 life imprisonment for a 36 year old man convicted of murder. He had used a knife and a spear to stab the deceased, who was his brother, to death after an earlier fight. - In the case of *Sunday v. Uganda C. A Crim. Appeal No. 103 of 2006*, the 15 Court of Appeal upheld a sentence of life imprisonment for a 35 year old convict who was part of a mob which, armed with pangas, spears and sticks, attacked a defenseless elderly woman until they killed her.

The Prosecution invited the Court to apply the death sentence citing that the case qualifies as the "rarest of the rare" because the convicts targeted 20 vulnerable children aged 1 month to 8 years; they suffered gruesome injuries repeatedly inflicted and died a very painful death; the victims were innocent of the crimes for which the convicts sought avengement; there was a high degree of pre-meditation and planning dating back to 2013. The Defence


proposed 30 years imprisonment citing that the convicts were first offenders and remorseful; they are youthful and can reform; they were taken over by their youthful exuberance; they were insulted by the complainants when no justice was done for the death of their relative when the complainants kept 5 boasting that they die like flies because of their poverty; a death sentence is not reformatory. All these factors have been considered. In particular, I have considered the following aggravating factors: The gruesome manner of the commission of the offence involving the loss of 5 lives from one household. The offenders took the law into their own hands by avenging the death of 10 Bright Akampurira through the commission of another grave offence when the offending family had demonstrated a gesture of reconciliation and when they could have followed up the matter through the police and the courts of law. The victims were young and vulnerable aged between 1 month and 9 years. The victims sustained multiple (sustained or repeated) cut wounds in 15 vulnerable parts of their bodies including the heads and necks; for most of the victims, the injuries extended to the skull and brain matter; for Ainebyona Lynnette the injuries further extended to the throat; in the case of Ayiganiza Oscar, the injuries extended to the throat; the head of Natukunda Abwooli was decapitated. Deadly weapons (pangas) were used to inflict the injuries on 20 the victims. There was meticulous pre-meditation or planning involving a meeting and within the group, each of the accused played an active role in the killings, as referred to in the confession of Muhereza Rauben. The offenders deliberately targeted and caused death of vulnerable victims being children. I have also considered the impact of the crime on the family of the victims,


especially the father of the victims who lost 5 children in a gruesome murder and also lost the wife who was traumatized and later committed suicide. I have considered the following mitigating factors: the fact that the offenders are first offenders with no previous conviction or no relevant or recent 5 conviction; the remorsefulness of the offenders; youthful age of the offenders; family responsibilities of the offenders. I have considered the request of the convicts in allocutus asking for leniency. In this case, the aggravating factors are far greater than the mitigating factors.

Under Article 23 (8) of the Constitution and Regulation 15 (2) of 10 The *Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013*, the court should deduct the period spent on remand from the sentence considered appropriate, after all factors have been taken into account. I observe that Muhereza Rauben was arrested on 17/3/2019 and has been in custody for 3 years, 1 Month and 2 days. Baryeija Justus alias Yusi 15 was arrested on 16/3/2019 and has been in custody for 3 years, 1 Month and 3 days.

After considering the totality of the circumstances of this case, I consider a sentence of life imprisonment (meaning that each of them is to spend the rest of his natural life in prison) for the offence of Murder in each

²⁰ Count to be appropriate to the culpability of each of the convicts in this case.


I therefore sentence each of the convicts to imprisonment for life on each of the 5 Counts meaning that each of them is sentenced to spend the rest of his natural life in prison on each Count, after deducting the periods spent in custody up to today, that is 3 years, 1 Month and 2 days in respect of 5 A1 and 3 years, 1 Month and 3 days in respect of A2. The Sentences are to

run concurrently with effect from today.

Each of the convicts is advised that he has a right of appeal against both conviction and sentence, within a period of fourteen days.

**Dated at Fort portal this 19th** ¹⁰ **day of April 2022.**


Vincent Wagona **High Court Judge FORTPORTAL**