In December 2006, the Director of Public Prosecutions who was dissatisfied with the judgement of the High Court Judge Rubby Opio Aweri delivered on Dr Aggrey Kiyingi and two others for the murder of the former’s wife Robinah, appealed against the acquittal.
The DPP sought to overturn the judgement that saw Dr Kiyingi acquitted of the murder charges along with two others Charles Berwanaho, a police constable and Bob Mugisha, his then bodyguard.
The State argues that the trial court failed to properly evaluate the overwhelming evidence on record implicating the trio in the offence.
According to the Principal State Attorney, Jane Okuo-Kajuga, who is part of the prosecutors pursuing this appeal, the state is still interested in pursuing the appeal but the hearing had been hampered by inability to serve the hearing notices to the respondents -Dr Kiyingi, Berwanaho and Mugisha.
She explained that the state could appear in court but the other parties were not represented.
Ms Kajuga also argues that since Dr Kiyingi was out of the country, it has been difficult to serve him with summons in the last five years.
This argument, however, does not explain the failure to serve the two other respondents, who live in Uganda.
Berwanaho, according to the State, was summoned two years ago when the matter came up in court.
By this time, he was said to be deployed in Kotido and the state informed the court that the police had given Berwanaho the notice to hear the appeal but he did not show up and no much explanation has been given, and yet the state cannot confirm where he is deployed at the moment.
While the whereabouts of Mugisha are not known, Ms Kajuga says: “We have failed to trace his whereabouts and the lawyers who represented him at the lower court have distanced themselves by saying they no longer represent him.”
However, the law provides that the hearing of an appeal can go on without the respondents being in the court and judgement may be passed in their absence.
A case in point is the murder appeal by the state against former Mayuge Local Council boss Baker Ikoba Tigawalana, who was convicted for the June 2003 kidnap and murder of his political rival Fred Nume Musiitwa. He is now a fugitive.
There is now fear that the state could lose the chance to have this high profile case appealed.
The last time Dr Kiyingi’s appeal came up in court was in November 2009 and the court gave the state one last chance to pursue their appeal.
Ms Kajuga and the state team say they could explore the option to have the appeal heard without the respondents being present in court.
“We are just waiting for the Court of Appeal to cause list the appeal and argue it out,” said Ms Kajuga.
The Court of Appeal Registrar Erias Kisawuzi in a telephone interview said they might hear this appeal after May.
According to him, the court is currently handling election petitions.
“We are now hearing election appeals, we can’t mix election appeals with criminal ones, that appeal mighty be considered after May,” said Mr Kisawuzi.
The team that first had the appeal were Justice Amos Twinomujuni, who headed the Coram. Others justices included Constance Kategaya Byamugisha and Augustine Sebutuulo Nshimye.
Justice Aweri while acquitting the trio in 2006, ruled that although evidence by the key witnesses was acceptable, court could not allow it as it was based on information from the fourth suspect, John Atwine, who died in prison.
Also lack of a proper investigation was said to have cast doubt on the whole case and the judge had no option: “My humble submission is that the prosecution has deliberately kept these facts away because they were the worst in the prosecution’s case. If the printouts were brought, they would have indicated that they never received any calls. That’s why the State has kept them away. Therefore the evidence of these three witnesses is a fabrication on suspicion at the first attempt,” justice Aweri said.
Prosecution also failed to prove the source of the murder weapon. The ballistic experts from Kenya and Uganda gave conflicting testimonies on the gun.
Background of the case
Robinah, a then prominent Kampala lawyer and rights activist, was showered with five bullets through her head and two more were recovered at the scene of the crime.
The assailants, who attacked her at her gate as she returned from work escaped on a boda boda motorcycle.
The state later alleged that Dr Kiyingi had the motive to kill his wife since he had filed a divorce petition and sought to remarry. Prosecution also said he was disgruntled because he did not want to share property with his wife.
To support the case, the state partly relied on Dr Kiyingi’s past threats to his wife, evidence that was presented by Robinah’s sister, Dr Eva Kasirye Alemu, and two of Kiyingi’s children Samalie Nakagulire and Ssebowa and the Kiyingi’s housemaid Prossy Nabbosa.
The State also claimed that a week before the murder, Dr Kiyingi went to his Buziga residence and removed some of his electronic gadgets -a TV set and radio.
Upon receiving the news of his wife’s death, Dr kiyingi never communicated to his in-laws nor offered comfort to his children.
It also said in July 2005, Dr Kiyingi hired Atwine through Berwanaho, who got in touch with detective Mugisha to provide the killer gun.
Dr Kiyingi was arrested at his wife’s burial at Kitetika on Gayaza Road in Kampala, charged with murder on July 19 and remanded toLuzira Maximum Security Prison.
The late Robinah and Dr Kiyingi met while students at Gayaza High School and King’s College Budo respectively.
They later met at Makerere University and eventually got married in 1977.
Revisiting Robinah Kiyingi’s murder
Monday, July 10, 2005 was a normal working day for Robinah and her target was to be in office early enough to clear her desk from the workload from the previous week.
Her house help packed breakfast for her in the morning. They wished each other a blessed day, before she left for work. It is said on that day; she left her office located on Dewinton road at around 8pm and drove home.
As was her custom whenever she would get home, she hooted once and waited for her house help to open the gate. Unknown to her, armed men had been trailing her from town. She seemed to have seen them approach her and she panicked. She shouted her maid’s name and started hooting, but it was too late.
According to the maid, she heard Robinah screaming: “Yesu, Yesu! (Jesus, Jesus!),” followed by sporadic gunshots. The maid retreated to the house for safety, unaware of what had befallen Robinah.
They sprayed bullets in her body. Having accomplished their mission, they retreated, dropped the gun about 100 metres away and fled on a motorcycle.
Her body lay in the driver’s seat. Several bullets had shattered her skull and bits of brain and blood oozed from her head.
All this happened while Dr Aggrey Kiyingi, her husband, was away in Sydney, Australia.
In connection to Robinah’s murder, police arrested Dr Kiyingi and three other suspects. They were later charged with murder and remanded to Luzira Maximum Security Prison.
Dr Kiyingi was accused of having masterminded the murder of his wife. Prosecution alleged that Dr Kiyingi rather than participating in the murder paid off Charles Berwanaho, Bob Mugisha and the late Pte John Atwine.
It meant that all evidence would be circumstantial. Indeed the state admitted that all evidence was circumstantial “but it is sufficient to secure their conviction.”
The state’s confidence of securing a conviction was based on the evidence of 26 witnesses, although the judge while summing up hinted that he would focus on evidence by four witnesses.
The state proved three ingredients of murder- that she was actually dead, her death was unlawfully caused and that her assailants killed her with malice aforethought.