AS the trial of FDC president Col. Kizza Besigye over rape wound up yesterday, court assessors Juliet Kasendwa and Frederick Lubowa advised the court presided over by Justice J.B. Katutsi to acquit him. They based their opinion on the summary of notes Katutsi gave them. M. Olupot, A. Mugisa, H. N
This matter comes up for summing of the notes for the Assessors. We have been silent while others were talking. Now it is our turn to talk. The charge before court is rape:
What is rape?
Rape is the act of having unlawful carnal knowledge of a woman or girl, without her consent, or with consent, if the consent is obtained by force or by means of false representation as to the nature of the act.
The ingredients of the offence of rape:
1. Penetration of a female sexual organ by a male sexual organ. Any slightest penetration is sufficient and there need not be discharge of semen.
2. Lack of consent on the part of the complainant.
3. Accused as the ravisher.
Burden of proof
This simply means that where an accused person has entered a plea of not guilty, the prosecution is obliged to prove upon trial in effect each circumstance stated in the indictment, which is material and necessary to constitute the offence. I have already told you there are three facts or circumstances or ingredients in the indictment, which are material and necessary to constitute the offence of rape. The burden of proving the guilt of the accused lies upon the prosecution and it is not for the accused to prove his innocence.
Degree of proof
The burden of proving the guilt of the accused is only discharged on proof beyond reasonable doubt. â€œNot, be it noted, of every doubt, but only of a doubt which reasons can be given. To warrant acquittal, the doubt must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such doubt as upon a calm view of the whole evidence, a rational understanding will suggest to an honest heart, conscientious hesitation of minds not influenced by the person pre-occupied by prejudice, or subdued by fear. But if at the end of the day and to borrow Lord Kenyonâ€™s homely phrase:
â€œIf the scales of evidence hang anything like even, to throw into them some grains of mercyâ€ and give the accused person the benefit of any reasonable doubt.
In cases involving sexual offences, there is need for corroboration of both evidence proving that sexual penetration of a complainant took place and the complainantâ€™s evidence implicating the accused in the commission of the offence. However, a court can convict on the uncorroborated evidence of the complainant if it warns itself of the danger of doing so and is satisfied that the complainantâ€™s evidence is truthful. The nature of corroboration required is evidence, which confirms in some material particular not only that the crime has been committed but also that it is the accused who committed it.
The law is that if these are major, that is, if they go to the root of the matter before the court unless explained away, will render prosecution evidence worthless and a court cannot safely enter a conviction based on such discredited evidence. If minor, they can be ignored. Whether there are major contradictions and inconsistencies in prosecution evidence is for you to determine. It is for you to determine whether they are major or minor.
Case to answer
You recall that at the end of the prosecution case, I ruled that the accused had a case to answer. As usual, the press jumped in and told the general public that the accused had some explanation to make. When it came to the defence, the accused evoked his legal right and selected, as it were, not only to close his mouth but to call no witnesses. To a lay person not schooled in the intricacies of the law, this scenario can be puzzling. It is my duty to steer you clear out of this quagmire. When prosecution rests its case, the court is not required to decide finally and definitively whether the evidence is worthy of credit, or, if believed, it is weighty enough to prove the case conclusively, that final determination can only properly be made when the case of the defence has been heard. When the accused selected to say nothing by way of his defence and not call witnesses, he rested his case. It is this stage at which we are now that the court is required to decide finally and definitively whether the evidence on record, including the demeanour of the witnesses, is worthy of credit, or, if believed, is weighty enough to prove the guilt of the accused beyond reasonable doubt.
You are not entitled to ask yourselves why the accused decided to say nothing and not call any witnesses. He exercised his legal right and, please, have in mind that it is not for the accused to establish his innocence but for the prosecution to establish his guilt. It is as simple as that.
You heard all the evidence, you heard both counsel on each side submit on the evidence with commendable zeal. I must say that we are eternally grateful to Byabakama Mugenyi, the Deputy Director of Public Prosecutions and Mr. Mpanga, learned counsel on the defence team, for the meticulous and painstaking research, which definitely has eased my work. I will only highlight some salient points in the evidence for ease of your reference.
The complainant is not a rustic girl. She was an undergraduate at the time material to this case. In the Police statement which she said she wrote herself, she gave a wrong age. Was it a deliberate lie as contended by the defence or an innocent mistake as contended by the prosecution? In her statement she wrote:
â€œI remember very well it was a Saturday evening around 8:00pm/9:00pm (around October/November 1997.).â€ This is the time she claims she was raped. Remember we are here dealing with an undergraduate. That rape is a heinous crime beyond dispute. Is it possible that she could forget the date on which her life got a U-turn as she claims? Is it really possible, that is if there was a rape? It is said the complainant made her first complaint to the Police on 04/07/01. Exhibit â€œD3â€ has the following entry: â€œ28-06-2001 FIRST INFORMATION. 1405/CID HQTRS
Inquires have been opened surrounding the allegation that Col. Dr. Kizza Besigye while acting as a guardian to one Kyakuwa R. Joanita unlawfully infected her with HIV/ AIDS when he very well knew his status. This unfortunate incident occurred around five years (1997-1999) around Kampala.â€
This surely means and can only mean that the report to the Police was not that Dr. Kizza Besigye had raped Kyakuwa R Joanita but that he had unlawfully infected her with HIV/AIDS when he very well knew his status. If so, then first information was not on rape but HIV/AIDS. Why, one may ask, was rape an afterthought? In her self-recorded statement the complainant wrote:
â€œHe first put me down on the bed, forced my shorts out and removed my knickers and since I was fighting him, he entered me forcefully. It was painful. I was crying. He had sexual intercourse with me and since I was crying, I donâ€™t remember whether he reached climax. So after some minutes, he left me and went to the bathroom. I remained in shock, crying and he came back and told me that it was okay. Later, I went to my room crying. I was bleeding and I had sustained some bruises in the vagina and since I was confused, I went to the housemaid (Aisha) and told her every thing...â€
Did she mean to say that if she had not been confused, she would not have told the maid? That is exactly what her statement conveys.
You recall her evidence before us. But to remind you she said after raping her, the accused got off her and went to the bathroom from where he returned with a small towel which he gave her and told her to clean her self which she did.
That after that she ran out of the room while crying and went downstairs. That is where the maid found her to tell her that supper was on the table. The maid then asked her what was wrong and that it is then that she told the maid that the accused had raped her. That means that she did not volunteer that information. She was asked.
Here is a woman who claims she has been raped.
Her ravisher gives her a towel to clean herself. She takes the towel and cleans herself. Is this not strange?
If a witness is proved to have made a statement, though un-sworn in distinct conflict with her evidence on oath, her testimony is negligible and cannot be a basis of a conviction. I want you to listen to the quotation I am about to read to you.
â€œOur attention was however, drawn to the decision of this court in Rex V. Russell The Times May 3, 1935 and it was suggested that that case had laid down a qualification to the general principle above stated to the effect that if there were other evidence before the jury tending to show that the previous statement represented the truth they were entitled to rely upon it. This court can see no warrant for any qualification which indeed could mean that evidence which was clearly inadmissible would on proof of the other evidence there upon become admissible.... In the judgement of this court, when a witness is shown to have made previous statements inconsistent with the other evidence given by that witness at the trial, the jury should not merely be directed that evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements, whether sworn or un-sworn, do not constitute evidence upon which they can act.â€
Here what Joanita said in her Police statement does not constitute evidence upon which this court act. What she said in court is unreliable. That is the law.
In this case before us, it was permissible to cross-examine Kyakuwa Joanita upon assertions she had previously made not for the purpose of substituting those un-sworn assertions for her testimony, but for the purpose of showing that her sworn testimony, in the light of those un-sworn assertions, could not be regarded as being of importance. They are of no probative value.
Distressed condition of the complainant
In sexual offences, the distressed condition of the complainant is capable of amounting to corroboration of the complainantâ€™s evidence. But here the evidence of the complainant is of little or no probative value due to its inconsistences in evidence at the trial and in her self-recorded statement. What Aisha said is not corroborative evidence. At best, it could only be evidence of consistency and nothing else.
Abuse of process
Every court has inherent power to prevent an abuse of its process for instance, when object is bona fide to obtain relevant evidence. While I did not go to the length of imputing fraud on prosecution, the circumstances of this case seem to indicate an attempt to secure evidence, using methods that seem to amount to abuse of process. Here I invite you to look at the largeness of the property given to Aisha, the inadequacy of the alleged reasons for offering her that property and determine for yourselves whether the State offered this large property to Aisha as a form of â€˜witness protectionâ€™, as submitted by prosecution ingeniously, or whether it was offered to Aisha to induce her to give evidence unfavourable to the accused, as contended by the defence.
Remember, lady and gentleman assessors, that while it is legitimate and important for the State to fight and punish crime, it is equally important that a crime is punished justly and in accordance with the law. The lines ascribed to Sir Thomas More by Robert Bolt are not without relevance here:
â€œThe law, Roper, the law. I know whatâ€™s legal, not whatâ€™s right. And I will stick to whatâ€™s legal. I am not God. The currents and eddies of right and wrong, which you find such plain sailing, I canâ€™t navigate. I am no voyager. But in the thickets of the law, or there, Iâ€™m a forester. What would you do? Cut a great road through the law to get after the Devil?.. . and when the last law was down and the Devil turned round on you, where would you hide, Roper? The laws all being that? This countryâ€™s planted thick with laws, from coast to coastâ€”manâ€™s laws not Godâ€™s, and if you cut them down, do you really think you could stand up right in the winds that would blow them? Yes, Iâ€™d give the Devil benefit of law, for my own safetyâ€™s sakeâ€. (Robert Bolt: A Man For ALl Seasons, Act l.l47).
So, give me your opinion based on the law I have endeavoured to explain above. Steer clear from what was not said within the four walls of this court hall. How much time do you need to give your opinion?
Kasendwa : About one hour, my lord.
Katutsi: We shall adjourn for one hour. (After one hour court resumes and the assessors give their opinions).
Kasendwa : My lord, after examining all the evidence on record from both sides, the prosecution and the defence, I am very much convinced that the accused, Retired Colonel Dr. Kizza Besigye, is innocent on the charges of rape and, therefore, I am advising this honourable court to acquit him.
Acquit Besigye on rape â€“ assessors