Court of Appeal decides to re-try Kajubi
Nov 23, 2010
THE Court of Appeal has ruled that Kato Kajubi has to be re-tried over the murder of a 12-year-old boy in 2008. Below are the proceedings.
THE Court of Appeal has ruled that Kato Kajubi has to be re-tried over the murder of a 12-year-old boy in 2008. Below are the proceedings.
Principal State attorneys Jane Okuo Kajuga and Andrew Odiit handled the appeal, while McDusman Kabega represented Kajubi.
Briefly:
The boy disappeared from home at Kayugi in Masaka district on October 27, 2008. On the fateful day, Umaru Kateregga had visited them and Kasirye served him drinking water. Shortly after Kateregga left, Kasirye got a 10-litre jerry-can purportedly to go for water at around 7:30pm. That was the last time the family saw him alive.
The next morning on October 28, 2008, suspicious residents caused the arrest of Kateregga and his wife, Mariam Nabukeera, whom they saw leaving the village carrying a bag. At the Masaka Police Station, the two revealed that Kasirye had been killed, his head and genitals cut off and taken by Kajubi. Kateregga led the Police to a swamp where Kasirye’s remains were dumped. According to Kateregga, Kajubi gave him sh360,000 with a promise to give another sh15m.
Kateregga and Nabukeera also told court that on the fateful night. Kajubi had driven to their home. A search in Kateregga’s house yielded the boy’s 10-litre jerry-can and Kateregga’s blood-stained shirt. There were also car tyre marks.
The trial court also heard that telephone printouts of Kajubi and Kateregga’s phone numbers revealed that they had been in communication before, during and after the killing of Kasirye and that Kajubi was in the vicinity of the crime on that day.
On acquittal, the State appealed on the grounds that the judge failed to evaluate the evidence properly and came to a wrong conclusion when there was a lot of evidence to put Kajubi on his defence.
Kajuga
According to Kajuga, Kateregga and Nabukeera were consistent that on the night of October 27, 2008, Kajubi drove to their home after midnight; that Kajubi and his companion called Steven killed Kasirye in their presence in their house; that Kajubi took away Kasirye’s mutilated body and threw it in a swamp in the presence of Kateregga.
Kajuga said a lot of evidence corroborated that of Kateregga and his wife. For example, on the morning after the murder, witnesses said they saw car tyre marks were at Kateregga’s home yet the trial judge did not comment on it at all.
She said Kajubi’s conduct after the murder was ignored by court. He disappeared from his homes and all his known places of work for a month before he surrendered himself to the Police.
The murder was highly publicised and photographs of Kajubi appeared daily in connection with the murder but he remained in hiding for a whole month. The Police searched all his residences. His known telephone numbers were were switched off. According to counsel, this was not the conduct of an innocent man. Yet, the judge did not consider or even mention that evidence at all.
Kajuga submitted that when the Katereggas protested against the killing of Kasirye at their home, Kajubi pulled out a pistol and threatened to kill them. She said the recovery of a shotgun and a revolver at Kajubi’s home corroborated the evidence
The other corroborative evidence, according to State lawyers, was another testimony from a witness that Kajubi repeatedly communicated on phone with Kateregga. The evidence also proved that Kajubi was near the scene of crime in Masaka. Yet the trial judge stated that the evidence of Kateregga and Nabukeera was not reliable and did not consider the phone communication.
Kajuga also said the trial judge ignored another vital evidence which corroborated that of Kateregga and Nabukeera. Kateregga had testified that Kasirye’s assailants wanted his body parts. It was significant that when the body was found the day after the murder, certain body parts were missing.
Odiit
He criticised the trial judge for using Nabukeera’s extra-judicial statement to conclude that her evidence and that of Kateregga were discredited in cross-examination.
During cross-examination, Nabukeera denied the contents of the document and said she did not tell the magistrate what was being read to her. The statement was admitted in evidence through her testimony by the defence without calling the testimony of the person who had recorded the statement.
In Odit’s view, it was a serious error for the court to rely on a document which was not properly admitted in evidence, especially when almost all its contents were denied. This grave error led to the court to hold that Kateregga and Nabukeera’s evidence was not credible, which was highly prejudicial to the prosecution.
Odiit also criticised the way the judge handled the telephone communication evidence between Kajubi and Kateregga. Though the evidence showed that before, during and after Kasirye’s death, Kateregga was in telephone communication with Kajubi and that Kajubi was calling from locations near the scene of crime, the judge underplayed the evidence and did not consider it in its proper context.
That evidence tended not only to show that Kajubi had committed the crime but also corroborated the evidence of Kateregga and Nabukeera that that night, Kateregga went to their home. According to Odiit, it was amazing that the trial judge chose not to attach any value to the telephone communication.
He criticised the judge for ruling that the evidence of Kateregga and Nabukeera was worthless, basing himself on an erroneous finding that the two had contradicted themselves, without pointing out how. According to Odiit, the judge relied on speculation and unjustifiably demanded corroboration after assuming that Kateregga and Nabukeera were accomplices.
He complained that the judge dealt with the matter as if he was looking for proof beyond reasonable doubt, which was not required at that stage of the proceedings. “He asked us to evaluate the evidence and to declare that prosecution had made out a prima facie case against Kajubi,†Odiit said.
He submitted that the judge mistook the requirements for the prima facie case and demanded a standard of proof which is only required when the court is determining the question of proof beyond reasonable doubt. He said the way the court handled the issue of accomplice evidence was premature and led to a miscarriage of justice.
Kabega
Kabega, who represented Kajubi, agreed with the trial judge entirely. Kabega argued that the car tyre marks at Kateregga’s home was not proof that they belonged to Kajubi’s car.
He also said the court could not consider the evidence of the missing body parts because it was not credible at all.
Kabega also argued that regarding Kajubi’s conduct after the discovery of Kasirye’s remains, the State did not bring evidence to show that Kajubi was wanted by the Police. He said that under the law, evidence that a suspect had absconded after a crime was committed forms a tiny part of the evidence necessary to prove the crime against him.
He also said the rifle and revolver found at Kajubi’s home were not produced in court for the suspect to identify them. As for the motive of the killing, Kabega said it was not a necessary ingredient to be proved against an accused.
As to whether the ruling of “no case to answer†was made at the right time, Kabega said the court rightly did so because it had found that Kateregga and Nabukeera were accomplices because this was necessary to determine their credibility and whether their evidence needed corroboration or not.
Kabega said the two witnesses contradicted their Police statements that no reasonable tribunal would have relied on their testimony. He said Kateregga had shown court that he was a liar and that he admitted to court that he lied to make a living.
The appeal judges
Counsel raised a number of issues which are crucial to the determination of this appeal, namely:
(i) Whether the key prosecution witnesses Kateregga and Nabukeera were accomplices or not.
(ii) Whether their evidence required corroboration.
(iii) Whether the learned trial judge evaluated the evidence properly to the standard required when deciding whether a prima facie case has been made out or not.
We start with whether Kateregga and Nabukeera were accomplices. It is significant to note that right from the start of the trial in the High Court, the record shows that the court, the defence counsel and to a certain extent, the prosecution counsel assumed that Kateregga and Nabukeera were accomplices and they were treated as accomplices throughout the trial. This had a significant effect on reaching the conclusion that their evidence was worthless and that no reasonable tribunal could rely on it.
The trial judge stated: “On the submission of the learned Principal State Attorney, the prosecution relied mainly on the evidence of Kateregga as corroborated by Nabukeera. 1 refer to the holding of LORD READING, CJ in R V BASKERVILE (Supra) that one accomplice’s evidence is not corroboration of the testimony of another accomplice…because an accomplice is likely to swear falsely in order to shift the guilt from himself and because an accomplice being a participant in crime, and consequently an immoral person, is likely to disregard the sanction of an oath.
I find them so manifestly unreliable that no reasonable court can safely convict on their evidence. Kateregga has been shown to have deliberately lied to court in narrating the circumstances of the murder of Kasirye. It is the law that if the principal prosecution witnesses have been shown to be unreliable, then a submission of “ no case to answer†may succeed.
The judge ruled that there were major contradictions in Kateregga and Nabukeera’s evidence. He said that the witnesses intended and actually told deliberate lies. He said because of that, their evidence was unreliable and that the prosecution had failed to make out a case to make Kajubi defend himself.
The judges of appeal also noted that once it was assumed from the beginning that Kateregga and Nabukeera were accomplices, it was easy to conclude that they were liars, immoral; and that their evidence was worthless. They said it was therefore necessary to examine whether they were actually accomplices. I find that the accused has no case to answer.â€
The supreme Court of Uganda has had an occasion to discuss the meaning of “accomplice†(they cite an appeal case of Nasolo Vs Uganda, 2003). It was a murder case. The court decided that a witness is said to be an accomplice if, he participated as a principal or an accessory in the offence
Coming to the instant case, Kateregga and his wife Nabukeera were the first suspects of Kasirye’s murder. But they never at anyone time confessed voluntarily to the killing. There is a lot of credible evidence on record that an attempt was made by the Police to make them confess to the crime but they constantly refused until they accepted to ‘confess†after a lot of beating.
They were forced to sign documents of confession which they denied at the trial of Kajubi. Kateregga showed court that almost all his toe nails were removed under torture.
Kateregga rejected the claim that he had made any confession before the Police. What is strange though, he admitted making an extra-judicial statement before a magistrate. The obvious conclusion is that if it had been exhibited, it would have proved adverse to all those who asserted that he was an accomplice and established his consistency with what he told the court on oath.
The judges said the same thing applied to Nabukeera who also refused to confess and was tortured. Though she agreed that she made a statement before a magistrate, she denied its contents. They noted that later on, the court and the defence used the same statement to discredit her evidence though the one who allegedly recorded it was never called to testify.
The strange thing about this trial is that when you read its full record, including the ruling of the court, you get the feeling that it was Kateregga and Nabukeera who were being tried. It does not at all look like a trial of Kajubi.
They have never been convicted or pleaded guilty to Kasirye’s murder. It is difficult to tell why the judge treated them and “tried them†as if they had murdered Kasirye.
The Court of Appeal said though Kateregga had admitted that he sometimes lied to earn a living as a native doctor and that he had lied to Kajubi that he had supernatural powers, it did not mean he was incapable of telling the truth on oath.
We hold that Katergga and Nabukeera were not proved to be accomplices and their evidence did not need corroboration. Nevertheless, it was adequately corroborated.
The justices said the two witnesses’ evidence corroborated each other. For example Kateregga led Police to Kajubi’s different homes in Kampala and Masaka as well as to his businesses. They noted that Kateregga established that Kajubi bought him a phone and that they were constantly communicating until after the murder. The printouts put Kajubi at the scene of crime in that they showed he was in Masaka that night. The judges noted that the couple corroborated each other as to Kasirye’s murder which took place in their house. The judges also noted that the two witnesses were constantly harassed by the defence and the court under cross-examination.
We have now held that Kateregga and Nabukeera were not accomplices and their evidence together with other circumstantial evidence corroborating their testimony heavily implicated Kajubi.
This case shocked the entire nation. It is in the interest of Kajubi and the people of Uganda that a just solution be found. At risk of an amount of delayed justice, we think that the only viable resolution of the conflict between justice and impunity is to order that there be a retrial in the High Court of Uganda before another Judge.
Principal State attorneys Jane Okuo Kajuga and Andrew Odiit handled the appeal, while McDusman Kabega represented Kajubi.
Briefly:
The boy disappeared from home at Kayugi in Masaka district on October 27, 2008. On the fateful day, Umaru Kateregga had visited them and Kasirye served him drinking water. Shortly after Kateregga left, Kasirye got a 10-litre jerry-can purportedly to go for water at around 7:30pm. That was the last time the family saw him alive.
The next morning on October 28, 2008, suspicious residents caused the arrest of Kateregga and his wife, Mariam Nabukeera, whom they saw leaving the village carrying a bag. At the Masaka Police Station, the two revealed that Kasirye had been killed, his head and genitals cut off and taken by Kajubi. Kateregga led the Police to a swamp where Kasirye’s remains were dumped. According to Kateregga, Kajubi gave him sh360,000 with a promise to give another sh15m.
Kateregga and Nabukeera also told court that on the fateful night. Kajubi had driven to their home. A search in Kateregga’s house yielded the boy’s 10-litre jerry-can and Kateregga’s blood-stained shirt. There were also car tyre marks.
The trial court also heard that telephone printouts of Kajubi and Kateregga’s phone numbers revealed that they had been in communication before, during and after the killing of Kasirye and that Kajubi was in the vicinity of the crime on that day.
On acquittal, the State appealed on the grounds that the judge failed to evaluate the evidence properly and came to a wrong conclusion when there was a lot of evidence to put Kajubi on his defence.
Kajuga
According to Kajuga, Kateregga and Nabukeera were consistent that on the night of October 27, 2008, Kajubi drove to their home after midnight; that Kajubi and his companion called Steven killed Kasirye in their presence in their house; that Kajubi took away Kasirye’s mutilated body and threw it in a swamp in the presence of Kateregga.
Kajuga said a lot of evidence corroborated that of Kateregga and his wife. For example, on the morning after the murder, witnesses said they saw car tyre marks were at Kateregga’s home yet the trial judge did not comment on it at all.
She said Kajubi’s conduct after the murder was ignored by court. He disappeared from his homes and all his known places of work for a month before he surrendered himself to the Police.
The murder was highly publicised and photographs of Kajubi appeared daily in connection with the murder but he remained in hiding for a whole month. The Police searched all his residences. His known telephone numbers were were switched off. According to counsel, this was not the conduct of an innocent man. Yet, the judge did not consider or even mention that evidence at all.
Kajuga submitted that when the Katereggas protested against the killing of Kasirye at their home, Kajubi pulled out a pistol and threatened to kill them. She said the recovery of a shotgun and a revolver at Kajubi’s home corroborated the evidence
The other corroborative evidence, according to State lawyers, was another testimony from a witness that Kajubi repeatedly communicated on phone with Kateregga. The evidence also proved that Kajubi was near the scene of crime in Masaka. Yet the trial judge stated that the evidence of Kateregga and Nabukeera was not reliable and did not consider the phone communication.
Kajuga also said the trial judge ignored another vital evidence which corroborated that of Kateregga and Nabukeera. Kateregga had testified that Kasirye’s assailants wanted his body parts. It was significant that when the body was found the day after the murder, certain body parts were missing.
Odiit
He criticised the trial judge for using Nabukeera’s extra-judicial statement to conclude that her evidence and that of Kateregga were discredited in cross-examination.
During cross-examination, Nabukeera denied the contents of the document and said she did not tell the magistrate what was being read to her. The statement was admitted in evidence through her testimony by the defence without calling the testimony of the person who had recorded the statement.
In Odit’s view, it was a serious error for the court to rely on a document which was not properly admitted in evidence, especially when almost all its contents were denied. This grave error led to the court to hold that Kateregga and Nabukeera’s evidence was not credible, which was highly prejudicial to the prosecution.
Odiit also criticised the way the judge handled the telephone communication evidence between Kajubi and Kateregga. Though the evidence showed that before, during and after Kasirye’s death, Kateregga was in telephone communication with Kajubi and that Kajubi was calling from locations near the scene of crime, the judge underplayed the evidence and did not consider it in its proper context.
That evidence tended not only to show that Kajubi had committed the crime but also corroborated the evidence of Kateregga and Nabukeera that that night, Kateregga went to their home. According to Odiit, it was amazing that the trial judge chose not to attach any value to the telephone communication.
He criticised the judge for ruling that the evidence of Kateregga and Nabukeera was worthless, basing himself on an erroneous finding that the two had contradicted themselves, without pointing out how. According to Odiit, the judge relied on speculation and unjustifiably demanded corroboration after assuming that Kateregga and Nabukeera were accomplices.
He complained that the judge dealt with the matter as if he was looking for proof beyond reasonable doubt, which was not required at that stage of the proceedings. “He asked us to evaluate the evidence and to declare that prosecution had made out a prima facie case against Kajubi,†Odiit said.
He submitted that the judge mistook the requirements for the prima facie case and demanded a standard of proof which is only required when the court is determining the question of proof beyond reasonable doubt. He said the way the court handled the issue of accomplice evidence was premature and led to a miscarriage of justice.
Kabega
Kabega, who represented Kajubi, agreed with the trial judge entirely. Kabega argued that the car tyre marks at Kateregga’s home was not proof that they belonged to Kajubi’s car.
He also said the court could not consider the evidence of the missing body parts because it was not credible at all.
Kabega also argued that regarding Kajubi’s conduct after the discovery of Kasirye’s remains, the State did not bring evidence to show that Kajubi was wanted by the Police. He said that under the law, evidence that a suspect had absconded after a crime was committed forms a tiny part of the evidence necessary to prove the crime against him.
He also said the rifle and revolver found at Kajubi’s home were not produced in court for the suspect to identify them. As for the motive of the killing, Kabega said it was not a necessary ingredient to be proved against an accused.
As to whether the ruling of “no case to answer†was made at the right time, Kabega said the court rightly did so because it had found that Kateregga and Nabukeera were accomplices because this was necessary to determine their credibility and whether their evidence needed corroboration or not.
Kabega said the two witnesses contradicted their Police statements that no reasonable tribunal would have relied on their testimony. He said Kateregga had shown court that he was a liar and that he admitted to court that he lied to make a living.
The appeal judges
Counsel raised a number of issues which are crucial to the determination of this appeal, namely:
(i) Whether the key prosecution witnesses Kateregga and Nabukeera were accomplices or not.
(ii) Whether their evidence required corroboration.
(iii) Whether the learned trial judge evaluated the evidence properly to the standard required when deciding whether a prima facie case has been made out or not.
We start with whether Kateregga and Nabukeera were accomplices. It is significant to note that right from the start of the trial in the High Court, the record shows that the court, the defence counsel and to a certain extent, the prosecution counsel assumed that Kateregga and Nabukeera were accomplices and they were treated as accomplices throughout the trial. This had a significant effect on reaching the conclusion that their evidence was worthless and that no reasonable tribunal could rely on it.
The trial judge stated: “On the submission of the learned Principal State Attorney, the prosecution relied mainly on the evidence of Kateregga as corroborated by Nabukeera. 1 refer to the holding of LORD READING, CJ in R V BASKERVILE (Supra) that one accomplice’s evidence is not corroboration of the testimony of another accomplice…because an accomplice is likely to swear falsely in order to shift the guilt from himself and because an accomplice being a participant in crime, and consequently an immoral person, is likely to disregard the sanction of an oath.
I find them so manifestly unreliable that no reasonable court can safely convict on their evidence. Kateregga has been shown to have deliberately lied to court in narrating the circumstances of the murder of Kasirye. It is the law that if the principal prosecution witnesses have been shown to be unreliable, then a submission of “ no case to answer†may succeed.
The judge ruled that there were major contradictions in Kateregga and Nabukeera’s evidence. He said that the witnesses intended and actually told deliberate lies. He said because of that, their evidence was unreliable and that the prosecution had failed to make out a case to make Kajubi defend himself.
The judges of appeal also noted that once it was assumed from the beginning that Kateregga and Nabukeera were accomplices, it was easy to conclude that they were liars, immoral; and that their evidence was worthless. They said it was therefore necessary to examine whether they were actually accomplices. I find that the accused has no case to answer.â€
The supreme Court of Uganda has had an occasion to discuss the meaning of “accomplice†(they cite an appeal case of Nasolo Vs Uganda, 2003). It was a murder case. The court decided that a witness is said to be an accomplice if, he participated as a principal or an accessory in the offence
Coming to the instant case, Kateregga and his wife Nabukeera were the first suspects of Kasirye’s murder. But they never at anyone time confessed voluntarily to the killing. There is a lot of credible evidence on record that an attempt was made by the Police to make them confess to the crime but they constantly refused until they accepted to ‘confess†after a lot of beating.
They were forced to sign documents of confession which they denied at the trial of Kajubi. Kateregga showed court that almost all his toe nails were removed under torture.
Kateregga rejected the claim that he had made any confession before the Police. What is strange though, he admitted making an extra-judicial statement before a magistrate. The obvious conclusion is that if it had been exhibited, it would have proved adverse to all those who asserted that he was an accomplice and established his consistency with what he told the court on oath.
The judges said the same thing applied to Nabukeera who also refused to confess and was tortured. Though she agreed that she made a statement before a magistrate, she denied its contents. They noted that later on, the court and the defence used the same statement to discredit her evidence though the one who allegedly recorded it was never called to testify.
The strange thing about this trial is that when you read its full record, including the ruling of the court, you get the feeling that it was Kateregga and Nabukeera who were being tried. It does not at all look like a trial of Kajubi.
They have never been convicted or pleaded guilty to Kasirye’s murder. It is difficult to tell why the judge treated them and “tried them†as if they had murdered Kasirye.
The Court of Appeal said though Kateregga had admitted that he sometimes lied to earn a living as a native doctor and that he had lied to Kajubi that he had supernatural powers, it did not mean he was incapable of telling the truth on oath.
We hold that Katergga and Nabukeera were not proved to be accomplices and their evidence did not need corroboration. Nevertheless, it was adequately corroborated.
The justices said the two witnesses’ evidence corroborated each other. For example Kateregga led Police to Kajubi’s different homes in Kampala and Masaka as well as to his businesses. They noted that Kateregga established that Kajubi bought him a phone and that they were constantly communicating until after the murder. The printouts put Kajubi at the scene of crime in that they showed he was in Masaka that night. The judges noted that the couple corroborated each other as to Kasirye’s murder which took place in their house. The judges also noted that the two witnesses were constantly harassed by the defence and the court under cross-examination.
We have now held that Kateregga and Nabukeera were not accomplices and their evidence together with other circumstantial evidence corroborating their testimony heavily implicated Kajubi.
This case shocked the entire nation. It is in the interest of Kajubi and the people of Uganda that a just solution be found. At risk of an amount of delayed justice, we think that the only viable resolution of the conflict between justice and impunity is to order that there be a retrial in the High Court of Uganda before another Judge.