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Kirumira murder: judge pokes holes in state evidence, assessors to give opinion tomorrow

The lone suspect Abubaker Kalungi being brought to court by prison authorities

The lone suspect Abubaker Kalungi being brought to court by prison authorities

Assessors appointed by the court in the alleged murder case of ASP Muhammad Kirumira, the former Buyende police commander, will tomorrow Tuesday provide their opinions on whether the court should convict or acquit the lone suspect.

Kirumira was shot dead with his female friend, Resty Nalinnya Mbabazi, by unknown assailants in Bulenga, Wakiso district, on September 8, 2018. Two suspects, Abubaker Kalungi and Hamza Mwebe, were arrested at different times and charged before a Magistrate's court in Wakiso before being committed to the High court, which has jurisdiction over such criminal cases.

It should be noted that in December 2022, court acquitted Mwebe after the prosecution failed to prove his connection to the murder case in question. This left Kalungi as the only suspect on trial.

In Uganda’s criminal jurisprudence, an assessor in law is a person who is appointed to advise the judge. These are typically lay people selected in the locality and must be persons with a very good reputation in their areas. However, the opinion of the assessors does not bind the judge in any way, and the judge may depart from it, giving his or her reasons why.

Today Monday, the trial judge, Margrate Mutonyi, provided guidelines to the assessors on how to issue their opinion and briefed them on the evidence presented by both parties. The judge summarized the case, analyzing the arguments and evidence presented by the prosecution and the counter-arguments made by the defense.

Justice Mutonyi explained that there are four elements that need to be satisfied beyond a reasonable doubt for the charges to stick, including the death of the victim, the unlawful cause of death, malice aforethought, and the accused's participation in the murder. Failure to fulfil any of these four elements leads to acquittal.

“While assessing and giving your opinion, I want you to depend on the facts presented before court as I have summarized them. This case has been highly publicized in the media and you might have heard other information. You are required to use information presented here, only,” she warned.

In her summary, Mutonyi was weighing the arguments of the two sides and evidence adduced, against the four ingredients of the case. For instance, she pointed out that the prosecution proved beyond reasonable doubt that death occurred and that it was unlawful.

“Two doctors namely Moses Byaruhanga and Male Mutumba examined the bodies and gave a postmortem report. A report for DNA from the Government Analytical Laboratory – GAL also confirmed that the deceased were Kirumira and Nnalinya. The two reports confirmed that two people died and of bullets.”

The judge went to the second ingredient which seeks to establish whether whoever caused death intended it, in other terms; if there was malice aforethought. She explained that this can only be proven by assessing the weapon used, body part injured and a confession if there is any.

“How does the state prove this since this is a mental element? Here the court considers the weapon used and parts of the body injured. In this case, prosecution proved that there were several gunshots on all parts of the body of the deceased person(s) leading to hemorrhagic shock,” she stated.  

Although the first three ingredients were proven beyond reasonable doubt, the judge asked the assessors to give their opinion on the fourth ingredient that requires the accused person’s participation in the murder. While prosecuting the case, the state presented 15 witnesses, one of them was; Abdul Kigongo, who allegedly witnessed the murder.

From his testimony, Kigongo told the court that he had interacted with the deceased persons - minutes before they were gunned down. He explained that no sooner had he walked ten metres away from Kirumira’s car than four assailants riding on two motorcycles started firing bullets.

“The eyewitness didn’t identify the suspects...but, look at the conduct of this witness. This witness interacted with the deceased minutes before his death, he was ten meters from the car when bullets were fired, watched what happened and didn’t leave the scene at any moment. He remained at the scene until when the president arrived,” the judge commented, inviting the assessors to carefully examine this matter.

Another critical piece of evidence that would place Kalungi at the murder scene, is the confession he allegedly gave to police officer Stephen Wolimbwa. But, in his defense, Kalungi told court that he had been tortured and forced to sign documents.

To this effect the judge posed a question to the assessor; “is Wolimbwa a truthful witness?” The question was based on the fact Wolimbwa had told court that at the time he recorded the statement, he didn’t see any physical injuries on the accused.

According to court records, Wolimbwa recorded the charge and caution statement on September 29, 2018. Appearing before the court, he denied to have seen any injuries on the suspect that could have pointed to possible torture. But, his testimony contradicted a medical report by Dr Santos Ojaro who examined Kalungi on October 2, 2018 and found that he had healing but visible wounds.

“The doctor's report shows that the accused had healing wounds on the forehead and lower lip, small multiple wounds on the back and tenderness on the left wrist. According to this medical form, injuries were a week old and caused by a blunt object,” she stated.

The judge added; “If there was any torture while in detention, can this statement be used against him?” The judge posed another question for the assessors to ponder on. She however reminded them that for court to accept confession, it should be free of torture.

The judge also raised another question on the phone records that were provided by the state linking Kalungi and Abdul Kateregga, who is said to have been the mastermind of the murder.

“There is no evidence to show that Kalungi talked to Kateregga before, during and after the murder. Evidence from the witness doesn’t state that Kalungi and Kateregga communicated... there is no evidence adduced to show that they knew each other,” she observed.

She also wondered why the investigators did not look at other potential suspects who could have been making telephone conversations at that critical moment when Kirumira was gunned down. The judge also wondered why the phone of Abdul Kigongo, who interacted with the deceased minutes before his death was never considered.

“Does this raise some doubt?” she posed another question.

She drew the attention of the assessors to the defense's claim that Kateregga could be a fictitious person given the fact that the state failed to produce proof of his existence or a postmortem report following his death.

Abdul Kateregga, 40, was reportedly on September 29 last year shot dead in Namungoona, Kampala, allegedly while fleeing arrest by security operatives who accused him of participating in the killing of Kirumira. Following her summary, the assessors requested for an adjournment that they write their opinion and present it to court tomorrow.

However, the judge could not resist warning them not to write a “judgement” but rather an opinion. “Don’t write a judgement, that is for me. Write a simple statement indicating your opinion and give reasons,” the judge said leading to a light moment of a chuckle in the courtroom.

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