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State winds up defence in Besigye’s rape case

By Vision Reporter

Added 31st January 2006 03:00 AM

YESTERDAY marked the end of state and defence submissions in the rape case against retired Col. Kizza Besigye. The state asked court to convict Besigye, saying they had produced enough evidence to implicate him.

However, the defence asked the court to acquit their client on grounds th

YESTERDAY marked the end of state and defence submissions in the rape case against retired Col. Kizza Besigye. The state asked court to convict Besigye, saying they had produced enough evidence to implicate him.

However, the defence asked the court to acquit their client on grounds th

YESTERDAY marked the end of state and defence submissions in the rape case against retired Col. Kizza Besigye. The state asked court to convict Besigye, saying they had produced enough evidence to implicate him.

However, the defence asked the court to acquit their client on grounds that the state had failed to prove its case against Besigye.

Hillary Kiirya, Anne Mugisa and Hillary Nsambu covered the proceedings.

Simon Mugenyi Byabakama represents the state while the defence team comprises Sam Njuba, David Mpanga, John Matovu, Yusuf Nsibambi and Kiyemba Mutale.

Below is a continuation of the state’s submissions.

Byabakama: My Lord we appear as before, apart from Mr. John Matovu who is not here. The last time we were here I had started addressing the honourable court on the issue of contradictions and inconsistencies. The law regarding the assessment of evidence of witnesses was authoritatively stated in the case of Alfred Tajar Vs Uganda, CR 67/1969 unreported.

That case has been cited and followed by courts of Uganda in various decisions. And the principle laid out in that case is “that in assessing evidence of a witness, the consistence or inconsistency of the witness is a relevant factor.” Grave inconsistency, unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected.
Minor inconsistencies will not usually have the same effect unless the trial judge thinks that they point to deliberate untruthfulness. Moreover, it is within the power of the presiding judge to find that a witness has been substantially truthful even though he lied in some particular effect. This principal has been re-stated in several Ugandan decisions as I earlier said. I wish to cite some. Yoram Bachunku and 3 others Vs Uganda, Criminal Appeal 22/1994. It is a decision of the Supreme Court of Uganda.
The other decision is Hajji Musa Ssebirumbi vs Uganda, Criminal Appeal no. 10/1989. It is also a decision of the Supreme Court. That principle is cited on page 18 of the judgement of justice Oder, justice the Supreme Court.

The third decision, which also a Supreme Court decision, is Emmanuel Nsubuga vs Uganda, Criminal Appeal No. 16/1988. That principle is stated on page 4 of the judgement. My lord, an inconsistency is said to be grave if it goes to the root of the case. And the roots of the case are the essential ingredients of the case.
Question is, how have the courts dealt with major/minor inconsistencies or contradictions between the evidence of a witness in court and his police statements? My Lord, I will start with the decision of Emmanuel Nsubuga, which I have already submitted. In that case, My Lord, it was a charge of robbery, the accused person was convicted for aggravated robbery.

The victims who the prosecution witnesses, (PW1, 2, 3 and 4), were attacked by a gang of armed robbers while they were travelling on a pick-up. PW1 and 4 were the passengers on this pick-up. Now my Lord when you look at page four of the judgement, the Supreme Court reproduced a passage of the judgement of the trial judge and in that passage of his Lordship, the trial judge, he was of the view,. That the discrepancies and inconsistencies in the evidence of PW1, 2, 3 and 4 are not so serious as to affect the entire evidence given by them. The trial judge was of the view that they mostly related to the description of the accused, his clothes and time of arrest.

However, on page 5 of the Supreme Court judgement, the court disagreed with the trial judge’s findings that these contradictions were minor because they only related to description of the appellant; his clothes and time of arrest and that therefore alleged vision/indication of the appellant was free from error. The Supreme Court said, I have highlighted that my Lord, “in our view it is precisely because they (that is the contradictions and inconsistencies) related to those matters which were relevant to the issue of identification that the discrepancies and contradictions of the eyewitness accounts for what they saw cannot be regarded as minor.

Page 5 to 8, the Supreme Court judgement discusses in detail the discrepancies between the witnesses’ Police statements and their court testimonies. The court concluded that the evidence of the eye witnesses was the identification evidence of the eyewitness PW1-4 was thus contradictory, inconsistent and confused that it was impossible to tell that they were talking about the same person. Their evidence was so unreliable that it was incapable in corroborating any other evidence.

The point I am driving at here is that in that case the inconsistencies and contradictions in Nsubuga were held by the Supreme Court to be major and not minor because they touched or related to an essential ingredient of aggravated robbery, which is identification.

And as a result, the Supreme Court disagreed with the learned trial judge because these were not minor because they touch on the essence of the offence of aggravated robbery identification and the sentence was therefore quashed accordingly.

My Lord, let me cite another authority, which is nearer home. This is the authority of Abas Kibazo vs Uganda. It is reported in 1965. East African Law Reported.
My Lord, this is a decision of then Court of Appeal for East Africa. In that case, the appellant was convicted for rape, similar charges in this case and on appeal, the Court of Appeal quashed the conviction and held that the trial judge placed a far great reliance on the evidence of the complainant than was desirable in view of the contradictions and falsehoods in her evidence.

I would like to examine those contradictions and falsehoods in the context of the case before you now. One of them in her testimony, the victim had stated she was a virgin at the time she was raped and that during the act, she bled from her private parts. Implying that her hymen had been ruptured on that very occasion. Secondly she stated that her dress was stained with blood. However, in evidence, it was found to be false. One, that she was not a virgin, the medical doctor who had examined her on that day told court that she was not a virgin, so that was a falsehood.

Secondly, the dress that she said was stained with blood, was found not to have had any blood stains on examination, that was a falsehood. Then, another aspect of her evidence under cross-examination, she stated that although she had met the appellant for two years, she was not a friend.

However, still under cross-examination, she later admitted that she had written several letters to the appellant and some of them were love letters. Then in her Police statement, she stated that the appellant had pulled her on the bed where he had sexual intercourse with her. But under cross-examination, she said he raped her on the ground near the bed.

Then also the complainant in her evidence stated that after she had been raped, the appellant took her outside the room, asked her to wash her private parts and after she refused to do so, the appellant took the water himself and did the job. Laughter in court as Byabakama demonstrated as he tried to squat.

The Court of Appeal found this very strange that the woman who has been so raped would allow her tormentor to wash her private parts. Even the court of Appeal made it I do know whether to say better or worse that that means she could not have been standing, she must have got into a better position to allow him to wash her. Laughter in court again.

And the Court of Appeal therefore said that the trial judge should have taken this into account when considering the issue of consent. Now I would like to distinguish that case from this case before you my Lord.

First of all when the complainant in Abas Kibazo was found to have lied that she was not a virgin, no blood on her dress, that contradiction went to the root of the case. It went to the issue of whether there was penetration at all.

And secondly my Lord, the issue of the letters which she acknowledged during cross-examination, she had written several letters to the accused, compelled with her evidence that he washed her private parts, affected the issue of consent.

Katutsi: How did it affect?

Byabakama: My Lord, I was coming to address that issue. My Lord the contradictions, inconsistencies in the complainant’s evidence in the Kibazo case, went to the root of the case in as far as the ingredients of this case are concerned and that is why the Court of Appeal rightly quashed the conviction of the lower court because they were fundamental.

Now in the case before you my Lord, the complainant stated that the accused penetrated her. My lord, let us come to that aspect alone. In cross-examination, this aspect, though it was challenged by defence, the complainant stuck to her story. No contradiction was raised in as far as this aspect is concerned of penetration.

In her oral testimony, she said the accused finished or ejaculated. She used a technical word and gave her a towel to clean her self. In her Police statement, she said she could not remember. Now my Lord, the question is: Is this contradiction major or minor in relation to the evidence?

First of all my Lord, she explained that at the time she made this statement, she was not yet okay and the Police told her to write her own statement. Whereas in open court, she was being guided by specific questions. And at the same time she said she was much better at the time she testified in open court than she was. And indeed my lord, from her evidence on this issue of not feeling well, she said whereas she went to Police on July 4, they wanted her to record a statement but she could not because she was not feeling well and she returned to her residence in Entebbe.

And the following day that is when a Police officer went to Entebbe to record a statement from her. So that shows that the witness certainly finishing or ejaculation is not a practice of sexual intercourse. It is penetration not finishing. The witness said and she was very emphatic that he penetrated her. She was feeling pain and indeed when she went to Aisha, she was complaining of pain in her private parts and crying.
Secondly my Lord, the following day......

Katutsi: Did she say she was a virgin?

Byabakama: she did not say my Lord that she was a virgin. In the case of Kibazo, the issue of virginity was not implied. It was specific. It was stated by the victim. She was a virgin at the time she was raped. The point is that the bleeding implied because she said that she was a virgin and she bled, it implied the hymen had all along been intact and preserved until it was punctured by this man, that is what it implied to court.
But here, the victim never said I was a virgin. And my lord, it can be said that when there is bleeding therefore it means one was a virgin. It depends on how the man...

Katutsi: Not necessarily, maybe the man has a big thing.

Byabakama: Exactly, maybe the man has a big weapon. Laughter in court. so maybe that is what causes that sort of thing. So it cannot be implied that the cause of bleeding is virginity. The other thing I would like to point out is that yes in this other case of Kibazo, the victim was examined by a medical superintendent and here as we said, the victim was never examined.

It is true that our victim or complainant in this case was never examined. That is a fact. My Lord I wish to refer to a decision on that aspect of Uganda vs Opio Richard, reported 1986 HCD page 19. My lord this is also a rape case. My lord in the facts before the holdings I have highlighted, the victim was never examined because according to the facts, the hospitals were non functional at the time. She was not examined, so there was reason for no examination.

It was held by justice Manyindo as then he was - in that sexual offences the complainants ought to be subjected to medical examination whenever that is possible for as it often turns out to be crucial to the case. My lord, I will not go back to the reasons why the victim was not examined in this case. I submitted on them on the first day.

However, it is important that my lord, something similar to this case that the judge went ahead to convict even when there was no medical examination. One of the pieces of evidence relied upon was in holding three. (The complainant was sad and crying in the morning of the incident as she narrated it to her sister). This is one of the factors the judge took into account. So my lord, whenever it is possible medical evidence is very necessary. But whenever there is reason for its absence, the honourable court should decide each case with its peculiar circumstances.

My lord, another important point to note is that the appellant gave evidence in that court and denied having sexual intercourse with the complainant and stated that the complainant had given false evidence against him because he had refused to marry her and had kept her waiting for a long time for marriage and that he had let her down.

That besides, my lord, coupled with contradictions and falsehoods in the complainant’s evidence, could not sustain the conviction. That is why it was quashed.

I wish also to talk about the discrepancy between the evidence of Joanita and that of Aisha, where Joanita found Aisha to tell her the story. Question. Is it major or minor, that contradiction between the two witnesses? I submit it is minor my lord. It is in the sense that it does not affect the essential issue that the victim was in a distress state after the incident.

I earlier submitted my lord that Aisha in her evidence stated that she went to the room of Joanita. It is not like she did not go to Joanita’s room that night. She went there to call her for dinner and found her crying and she refused, saying she was not going to have dinner, so it is just a slight mix up. It is not that Aisha did not go there. It is just a slight mix up where this story was re-laid from. The crux of the evidence of Joanita and Aisha is that the victim was in that state. She was distressed, crying and in pain.

And my lord my submission is that this is not minor because Aisha went to this girl’s room. So that contradiction is reconcilable in the sense that Aisha actually went in the room of Joanita. She reconciled and it does not affect the essential issue that the victim was crying and complaining of pain in her private parts. I wish to refer my Lord to the Supreme Court decision of Sulaiman Katushabe vs Uganda, Criminal Appeal no. 7/199.

My lord the charge was manslaughter and there were contradictions and discrepancies between the evidence of 3 witnesses concerning the stick (weapon used to kill).

The discrepancies are as to where the stick was and to whom it was given. Because one witness says she gave it to Police but in another part she says she gave it to PW5 and so on. So the question that was asked by the Supreme Court is whether the differences in their evidence pointed to the deliberate and truthfulness on part of each or all of them in accordance with the principals laid Alfred Tojar.

The Supreme Court found the discrepancies and contradictions, which appeared in the evidence of the three prosecution witnesses about the stick relate only to what are in our view minor matters namely where the stick was found, to whom it was given, Police or LCI chairman or PW5 and by who. It says they do not affect the essential issue that the appellant used a stick in assaulting the deceased.

Similarly here my Lord, the issue of whether Joanita went to the kitchen or Aisha went to the bedroom does not affect the issue that the complainant was in a distressed state. That is the issue I am emphasising in relation to this authority. I submit my lord that the contradiction is minor and pray that court should not interpret it as a deliberate lie on the side of prosecution witnesses. They were not deliberately telling lies.

My Lord court should also recognise the time lag or fact in which these witnesses were giving evidence. The offence took place in 1997. The witnesses PW! made her statement in 2001, four years later where as PW2 made her statement 2004. They testified in 2006. This time lag is such that witnesses are bound to get mixed up on some of these details.
My lord in the Supreme Court decision of Foro Yahaya vs Uganda Criminal Appeal No. 22/1999, they agreed with the holding of the learned trial judge that the inconsistencies in the prosecution case were minor as they did not affect credibility of the prosecution witnesses in any event, the trial judge held that the time lag of five years between 1993-1998 when the case was heard might explain differences in detail between different witnesses. Time lag of five years, here is about nine years.

Byabakama scribbles through his papers in search of the authority but does not get it. Unfortunately my lord my people have not sent me this judgement. I had asked them to photocopy and bring it to me. Could I furnish it later.

Katutsi: It is Okay.

Byabakama: Much obliged my lord. The case of Bichungu also discusses minor and major contradictions. I will not go through them to save court’s time. So the victim as I said earlier on says she was 22, she has explained that. The victim also talked of the number of times she had sexual intercourse with the accused. In evidence she said twice. First time when this incident took place and second time Bombo. However, in her Police statement, she said every weekend.

My lord the victim was very emphatic before this honourable court. She said what is correct is that it was once the rape and once in Bombo.

The rape took place in Luzira and then Bombo. Now my lord, this case before you is about one charge of the incident in Luzira. It is not repeated sex that resulted.
My lord in open court she said no. I explained earlier regarding the Police statement and oral evidence. In the Police statement as I said earlier on she was not okay. Her sickness was not physical but she had a mental problem. Depression and so on. It was not that she was so weak to be capable of writing. So my lord a person in that state is capable of making these discrepancies.

She came here and said no what happened was that I was raped once in Luzira then Bombo once. Secondly my lord as I said our charge is not that there was repeated episodes of rape, it was once. So the victim my lord was not. My lord, is court inclined to believe that this witness was telling lies on the authority of Taja? You have the power to disregard that part of her evidence and believe the other part because in our view as prosecution, she has been substantially capable in her evidence.

She did not break down in cross-examination. She did not waver, evade questions, she admitted where she made errors. My lord that kind of witness in my humble side was telling the truth and one aspect of her evidence should not be seen to destroy her entire evidence.

My lord I wish to refer to one authority where indeed the court found that the witness had told a lie but went ahead to believe the rest of her evidence. It is in the decision of Kitwala Ronald and 2 others vs Uganda,Criminal Appeal No. 20/1999. It is also a supreme Court decision. On page 12 of the judgement. He reads the particular contents of the judgement.

My lord it is my submission that if this honourable court is inclined to find that there are some lies in the evidence of the complainant. It is my submission that it exercises its discretion to weigh this against the entire evidence of the witnesses and find that she has been substantially truthful and admital agree to rest of her evidence.

My lord, there is even a worse scenario where someone is found to have been even worse than that. This is the authority of Gabula Right Africa vs Uganda, Criminal Appeal No. 19/1993. The decision of the Supreme Court of Uganda. I have already highlighted. He reads the relevant part.

The main witness in Mataka was a South African called P K Leberto, who was a government spy and one whom the trial judge found to be unreliable and at times untruthful witness. However, in that decision, it was held that the Chief Justice, who was the trial judge was entitled to sever.

The Court of Appeal of West Africa regarding Leberto’s evidence said this on page 504, that broadly speaking, the Chief Justice was satisfied that the main portion of his evidence was true and this is borne out of the admitted proved facts that the chief justice found that he would not accept any portion of evidence.
Now my lord on page 152, the Supreme Court on the decision of Gabula said on the basis on decision of Mataka’s case we think the learned trial judge would have relied on the portion of evidence of Tindiweji.

My lord, I believe I have done justice to the issue of inconsistencies and contradictions. However, I now wish to go to as I conclude. Contradictions and inconsistencies are major if they relate to the root.

Secondly, even if the witness is found to be untruthful in some respect court the honourable has power to disbelieve that aspect of that witness’s evidence and believe the rest of his or her evidence in the main.

I wish to come to the issue of corroboration. The principle of the law was stated in the authority of Chila and another vs 1967 EA 722, Page 723. Byabakama reads out
My lord this was followed in the Ugandan decision of Kibale Vs Uganda Criminal Appeal 21/1998 which is reported in 1999 1EA, Page 148 that is how it is.

Chila was followed in that decision of the Supreme Court of Uganda and it stated. The same principal was in Mugoya vs Uganda Criminal Appeal No. 8/1999 in which they said Chila was still good law. This was reported in 1999, 1 EA page 202.

The essence of Chila, my lord is that the honourable even without corroboration can convict provided it warns itself and the assessors of the dangers of doing so. The other factors are that sexual offences are normally committed in the confines of privacy where you do not expect fanfare or spectators as in a football match who are shouting awo, awo, awo. laughter. We do not have such habits in rape cases my lord. That is why the law has come up to say provided the court believes the evidence of the complainant can convict without corroboration, if it warns its self, court assessors of the danger.

My lord this was restated in a Supreme Court decision of Mohammad Kasoma vs Uganda Criminal Appeal No. 9/1994 where one judge said for him would convict. This was a defilement case of a 14-year-old. Court took note of the distressful condition of the complainant and said could amount to corroboration. The court also stated. He reads the particular part.

My lord, permit me now to address the issue of irregularities which he dealt with in detail regarding the way the case was conducted. He said many things were not done but.

Byabakama asked court to convict Besigye saying it had proved its case beyond reasonable doubts.

Read the defence submissions in full in our edition tomorrow.

State winds up defence in Besigye’s rape case

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