Justice Wilson Masalu Musene’s rulings that raised eyebrows 

In Uganda’s legal circles, transferring a High Court judge from a court domiciled in an urban setting to a rural High Court circuit is an indirect way the Judiciary honchos communicate a demotion, or at the very least, displeasure.
That was the case in the fall of 2016 when Justice Yorokamu Bamwine, then Principal Judge, dispatched communication sending Justice Wilson Masalu Musene, then the head of the High Court’s Criminal Division, found in the heart of Kampala, to Mpigi District where a new High Court circuit had been formed.
Justice Wilson Kwesiga, who was heading the High Court’s Lands Division, Justice Bamwine said, was to replace Justice Musene as the head of the Criminal Division. 

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Two months before he was hastily dispatched from the Criminal Division, Justice Musene had controversially granted bail to Muhammed Ssebuwufu, the proprietor of Pine Car Bond who together with his gang of seven was later found guilty by Justice Flavia Anglin Senoga, of killing businesswoman Betty Donah Katushabe.
Before letting Ssebuwufu regain his freedom, at least temporarily, Justice Musene had granted former Kampala Central Police Station commander Aaron Baguma, then Ssebuwufu’s co-accused, bail.

So, in granting Ssebuwufu bail, Justice Musene said he would be practicing double standards if he denied releasing the car dealer on bail yet his co-accused, Baguma, who was facing similar charges, was released on bail after spending 10 days on remand. Ssebuwufu had spent 11 months on remand.
“It is just equitable to grant bail to Ssebuwufu, who has satisfied the court that he will not abscond since he has a permanent place of abode in Najjera and substantial sureties to compel his to return to court,” Justice Musene said, adding that Ssebuwufu enjoys the same presumption of innocence as Baguma who was later pulled off the charge sheet by the Director of Public Prosecutions (DPP). 

If these bail rulings were controversial, one month before he was transferred from Kampala, Justice Masalu delivered a judgment that left many shocked and perhaps proved to be the final nail into his coffin.  
The case stemmed from a 2014 incident when a speeding car hit and instantly killed businessman Eria Ssebunya Bugembe, popularly known as Kasiwukira, who was on an early morning jog near his house in the leafy Muyenga suburb. 
Police and the prosecution zeroed in on Sarah Nabikolo, the businessman’s widow, saying she had financed the entire operation, and her sister Sandra Nakungu, who they alleged was the go-between  connecting Nabikolo and the hitmen. Also, policeman Jaden Ashraf was said to be the person behind the wheels of the car that ended Kasiwukira’s life.  
It was also revealed during the trial that the killer car, a Pajero, registration number UAE 018A, was owned by Nakungu.
Prosecution led by Alice Komuhangi Khaukha, now a High Court judge, and Samali Wakhooli, now a deputy DPP, presented a total of 23 witnesses and they were certain that the witnesses were convinced that Nabikolo moved to kill Kasiwukira after she found out that he had got a mistress. 

Khaukha explained that this angered Nabikolo to the point of calling her brother-in-law, John Bugembe Ggayi, to intervene. Another reason that could have motivated Nabikolo to kill Kasiwukira, according to the prosecution, could have been witchcraft. 
Khaukha hinged her claim on the testimony of Richard Byamukama, a security operative, who said Nakungu hired him to kill Kasiwukira.
Byamukama claimed Nakungu told him that Nabikolo wanted Kasiwukira dead because he was into witchcraft. 
“We were told that demons wanted one of her children sacrificed; so, in order to protect her own children, the old man [Kasiwukira] had to go,” Khaukha passionately submitted.
In her defence, Nabikolo denied practicing witchcraft. She said she is a committed born-again Christian and an Anglican. She said in the aftermath of Kasiwukira’s death, police searched her house and found no evidence of devil worship. 
The job of solving this puzzle was left to Justice Musene who found Nakungu, Nabikolo’s cousin, and Ashraf guilty of killing Kasiwukira and handed them each 20 years in prison.   
On the other hand, Justice Musene freed Nabikolo in a judgment that left the prosecution surprised.
  
It wasn’t only the prosecution that was disappointed, but Nakungu’s lawyer Nsubuga Mubiru was also shocked. The summary of Mubiru’s argument was that having left Nabikolo to walk, he should have let his client walk as well.
Mubiru took that line of argument because the prosecution had built their case around the fact that there was a “common intention” among the three to kill Kasiwukira. So, essentially, Mubiru contended that Justice Musene had either to acquit or convict all of them.   
“When he was assessing the evidence in regard to my client, he said it was strong,” Mubiru, a veteran criminal lawyer, said. “But when he was assessing the same evidence in regard to Nabikolo, he turned around and said it was weak.”
To connect Nabikolo directly to the murder, prosecution presented Richard Byamukama, a security operative, who told the court that Nakungu hired him to kill Kasiwukira. Byamukama claimed Nakungu told him that Nabikolo wanted Kasiwukira dead because he was into witchcraft.

The prosecution went the extra mile when they played a recording in which Ashraf is heard telling Byamukama: “Madam [Nabikolo] wants the man [Kasiwukira] dead because he wants to sacrifice his successor [first son].” 
Yet all of that didn’t sway Justice Musene who concluded that the prosecution didn’t link Nabikolo to the murder.  
“No witness was able to put accused three [Nabikolo] at the scene of the crime and there is no evidence to show that she participated in the meetings to kill the deceased,” Musene adjudged.
In the judgment, Justice Musene was able to resolve two critical queries. On who owned the killer vehicle, he said it was Nakungu. And Ashraf, he concluded, drove the killer vehicle. But in letting Nabikolo walk free, questions about who financed the plot remained unanswered.

The State had insisted that Nakungu and Ashraf were the foot soldiers as Nabikolo worked behind the scenes, providing the needed cash. To prove that Nabikolo was the main financier, Khaukha’s team again relied on the evidence of Byamukama.
His testimony was that he was brought into the picture by his friend Ashraf who told him that “madam” was willing to give him Shs30 million to kill Kasiwukira. Byamukama said negotiations hit a snag when he demanded Shs50 million. He said Ashraf and Nakungu told him they would first consult “madam” on the sum and then revert.
To qualify who the reference to “madam” meant, the prosecution presented the evidence of Silver Habimaana, a boda boda cyclist, who once worked as a porter at Kasiwukira’s residence.
According to Habimaana, all the time he worked at Kasiwukira’s house, they used to refer to Nabikolo as “madam”. Even in the recording tabled by the prosecution, Ashraf was heard telling Byamukama: “Madam wants the man dead because he wants to sacrifice his successor [first son].”  

Still, to Justice Musene, this wasn’t convincing. He consequently dismissed the concept that the “madam” the witnesses were referring to was Nabikolo. 
“The inference of madam wasn’t enough,” Justice Musene said, “There are a lot of madams in Uganda. Anybody can be a madam.” Though witchcraft was the main theme in this trial, Justice Musene completely ignored it in his judgment.

Before he could delve into the Kasiwukira judgment, Musene had in April of 2016 shocked the world when he freed Chris Mubiru, the former Uganda Cranes manager, after cancelling a 10-year prison sentence he got for alleged sodomy.
A month earlier, Flavia Nabakooza, then Buganda Road Chief Magistrate, had convicted Mubiru of having carnal knowledge of Emmanuel Nyanzi in 2009 after sedating him with chloroform, contrary to Section 14(a) of the Penal Code.  
During the trial that hogged the media limelight, footage was presented by the third prosecution witness, Pastor Solomon Male of the Arising in Christ Ministries, which showed Mubiru having sex with different young men.

“There was no direct evidence of a sexual act. The victim [Nyanzi] did not say that the accused [Mubiru] mounted him and pushed his p***s into his a**s,” Justice Musene ruled.
During Mubiru’s conviction at the lower court, Nyanzi testified that since he was sodomised by Mubiru, he had developed difficulties in easing himself. Justice Musene, however, twisted the blame and put it on Nyanzi, saying he failed to report Mubiru’s sodomy acts immediately in 2009.
“Appearing [to be sodomised] doesn’t mean that he had been sodomised,” the judge said.
Justice Musene said after finding out that he had been sodomised by Mubiru, Nyanzi stormed the house of his tormentor. However, when Mubiru told him that he was going to call the police, Nyanzi just ran away.
“It is at this time that he [Nyanzi] should have reported the matter to the police. So, the victim [Nyanzi] failed to take advantage of his distressed condition,” Justice Musene said.
The judge also relied on the evidence of the police officer who investigated the case. The officer told the trial court that Nyanzi told him that by the time he was sodomised, he did not know that it was a crime.

Justice Musene said it was wrong to convict Mubiru in the absence of a medical report to prove that, indeed, Mubiru had sodomised Nyanzi. Though police found chloroform in Mubiru’s house, the judge said there was no evidence to prove that Nyanzi had been drugged by Mubiru. The evidence of George Oundo was also dismissed. 
“Oundo by his own admission said that he had continued to be sodomised by other people in the following years; so, maybe he was an accomplice in this matter,” he said.
Justice Musene also criticised Nabakooza for relying on the evidence of Male yet the pastor was earlier found guilty of spreading malicious information against fellow pastor Robert Kayanja.