Kiruhura District murders: A trial within a trial

Saturday May 9 2020

 

By Sylvester Onzivua

There is no doubt that that investigating officers from police and prosecution teams considered James Asiimwe a key suspect in the murder of a prominent farmer and five of his workers, in Kiruhura District on the night of August 16, 2013.

Police therefore, recorded a charge and caution statement from him. This was to form a vital piece of evidence for prosecution. The defense lawyers, however, objected to the receipt of this evidence on grounds that;

i) It was not obtained voluntarily. It was obtained by means of torture. The accused was, prior to obtaining the statement, subjected to physical beating and psychological torture
ii) The accused was coerced with promises to be used as a state witness and to be granted bail upon execution of the statement.

Trial within a trial
Court had to pronounce itself on this matter and in order to do so, it held a trial within the trial. The prosecution relied on the testimony of two witnesses- the police officer who recorded the charge and caution statement and the doctor who examined the accused person.

The accused person, James Asiimwe, relied on his own testimony. Asiimwe was unfortunately not advised to seek the testimony of another medical expert, especially one conversant with examining torture victims and this was to prove fatal to his case. (Testimonies of the three witnesses were covered in the previous episodes of this series)

In a trial within a trial, as in all criminal cases, the burden of proof rests on the prosecution throughout trial and the standard of proof is beyond reasonable doubt. The issue for court to determine in this trial within a trial was whether the statement was voluntarily made and whether the procedure followed in recording it did not cause a failure of justice to the accused person.

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Court, however, did not address its mind to whether the accused person was indeed tortured or under any threat before the statement was made. Court did not also interest itself in finding out whether these had any effects or influence in the making of the statements. Court also did not consider whether in fact the accused person was coerced with promises.

Submission of the prosecution
Prosecution submitted that the statement they wished to tender in as evidence was not a confession but rather a statement to prove that the accused person had placed himself at the scene of crime at the time in question.

The prosecution was also content that the detective who recorded the statement testified that he had followed proper legal procedure in obtaining the statement. The accused person in the statement did not complain of having been tortured. The alleged torture was an afterthought. The accused person also signed the statement voluntarily.

The prosecution contested the alleged torture as narrated to court by the victim. According to prosecution, the accused was arrested on August 30, 2013 and the statement was recorded on September 8, 2013. The period of torture did not tally with these dates of torture as alleged.

The accused did not tell court that he received any medical attention. Clearly, somebody tortured in the manner the accused person narrated, would have been in need of medical care. Further, the doctor who examined the accused after the alleged torture, did not find any wounds on his body.

On the contrary, the accused testified that he was treated well by the police who were also friendly. The police fed him frequently. The police officer who recorded the charge and caution statement was not cross-examined on the alleged money given to him to make the accused sign the statement. The evidence of the police officer therefore remained unchallenged.

Submission by the defense
The accused person testified that he was transferred at night to Kampala upon his arrest, a place he had never been to, and made to spend a night with a dead body in a cell. He narrated that he was later moved from one place of detention to another, including ungazetted places of detention.

In addition, he was physically beaten, not once but on several days. These were acts to psychologically torture and break him into doing anything requested for by police, including signing a statement he did not make.

Inconsistence and disorientation
The accused was not consistent about the days he spent in detention in his evidence in court and his written statement. He could not vividly remember the intervals between his transportation from one place to another.

People who are tortured often get disoriented and this is clearly what happened to the accused. This also explains all other apparent inconsistencies highlighted by the State.

The accused person was tortured and showed court torture marks on his body as no other person would. His demeanor in court clearly showed he was telling court nothing but the truth. He was not coached and there is no evidence that he was.

The doctor who examined the accused did not ask him of the history of torture and did not carry out a mental state examination- an examination that is vital in establishing cases of torture. The evidence in respect of torture and its effect on the accused therefore remains unchallenged.

The Defense submitted that the contents of the statement of the accused were not voluntarily made and prayed to court to make a finding to that effect and reject the statement accordingly.

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