Man set free after Gulu court quashes murder conviction

The Court of Appeal found that there was sufficient evidence against Drakuma, particularly evidence from prosecution witness Sunday Ariaka Esau, who was allegedly held hostage at gunpoint for about an hour.

The court noted that Ariaka testified that while in Drakuma’s custody, he saw him shoot people behind him. The cartridges recovered from the scene matched the type of ammunition in the stolen gun.

The appellate judges further observed that two other witnesses,  Pamela Ayikoru and  Jimmy Tabu, had separately identified Drakuma during an identification parade as the person who had abducted them before the incident.

The witnesses were also able to identify his voice.

The court cited the case of Abdul Sabwe vs Uganda, in which it was held that voice identification can be valid even without visual contact. In Drakuma’s case, however, the court noted that there had been visual contact with the witnesses for a considerable period.

The court, therefore, found the evidence against him sufficient to sustain his conviction.

Alibi

The trial court had convicted Maliyamungu on the basis of the doctrine of common intention, relying partly on an alleged statement by Drakuma that: “If you want the gun, look for Maliyamungu.”

But Court of Appeal rejected this evidence, describing the alleged statement as hearsay and noting that it was not corroborated.

The court also found no tangible evidence linking Maliyamungu to the theft of the gun or the murders.

The judges further noted that Maliyamungu had raised an alibi supported by independent call data records, which placed him in Koboko Municipality, connected to an Airtel base station more than 30 kilometres from the scene of the crime at about 11:28pm on the night of the murders.

The prosecution, the court held, had failed to provide credible evidence to disprove the alibi or place Maliyamungu at the scene. The court also faulted the trial judge for failing to properly consider Maliyamungu’s alibi, describing the omission as a serious misdirection.

“Accordingly, Grounds 1, 2 and 3 of the second Appellant’s appeal succeed. His conviction is hereby quashed,” the court ruled.

Sentence revised

The court also faulted the manner in which the trial judge handled the sentencing of Drakuma.

It noted that the trial judge’s sentencing record was brief and did not demonstrate that the required mitigating and aggravating factors had been considered.

The appellate judges said the record did not show what submissions had been made regarding the factors that should have been taken into account before sentencing.

The court also considered the principle of parity in sentencing, noting that recent decisions had imposed lower sentences for similar offences.

It cited the case of  Noyslus  Lubandi vs Uganda, in which a 30-year sentence was reduced to 27 years, seven months and eight days after taking into account the period spent on remand.

The Court of Appeal concluded that Drakuma’s sentence was “manifestly excessive in substance” and set it aside.

The court sentenced Drakuma to 30 years’ imprisonment.

After deducting the two years and 10 months he had spent on remand, the court ordered him to serve 27 years and two months. The sentence was ordered to run from August 2, 2018, the date of his conviction.

The court consequently allowed Maliyamungu’s appeal, quashed his conviction and set aside his sentence.

It ordered that Maliyamungu be released immediately unless he is being held on any other lawful charges.

The appeal arose from High Court Criminal Session No. 0040 of 2016 at Arua, following a judgment delivered by Justice Anthony Ojok Oyuko on August 2, 2018.