The appeal of the housewife

Saturday January 23 2021
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This case will go down in history as the first case with a notorious record of having the lead investigator of the state testifying as a witness for the accused person. PHOTO/CREATION/NMG.

By Sylvester Onzivua

On the night of 10th January 2013, an incident, described as terribly unfortunate, occurred at the home of Jackline Uwera Nsenga and her husband. It was an unimaginable grim situation where Uwera was involved in an incident that claimed the life of the man who had been her husband for nearly twenty years and who was the father of her two children. 

An undisputed fact of the case is that Uwera drove a car into her home that evening and as fate would have it, her husband came to open the gate. Her husband got hit and was dragged by the car for a considerable distance. Uwera immediately drove her husband that evening to a nearby health unit where he died of his injuries a few hours later.
She was tried and convicted for the offence of murder and sentenced to a term of 20 years imprisonment.

She, however, appealed this conviction and according to her lawyers not every incident that results in death inevitably qualifies as culpable homicide, leave alone murder. Central to this case was whether Uwera’s husband was hit by the gate or the car and whether Uwera knew who was behind the gate.

Uniqueness of case
To the lawyers, unfortunately, due to the uniqueness and depth of the tragedy in the situation, this case got caught in a whirlwind of melodrama, sentimentality, and sideshows and as a result, the trial court fell short of applying the preceding vital legal tests and therefore occasioned a miscarriage of justice. The trial court is deemed to have failed to properly apply legal standards to the facts and thereby failed to evaluate the adduced evidence in its entirety. 

Court of Appeal
The initial case was heard in the High Court and the Court of Appeal was, therefore, the first appellate court. The first responsibility of the Court of Appeal in such a case is to reappraise the evidence and draw inferences of fact. And the court, at its discretion and for sufficient reason, may take additional evidence or may direct that the trial court take additional evidence.

Grounds of appeal
To the lawyers the trial court erred when it;
Relied on an equivocal out of court statement, purported to be a dying declaration to convict their client
Failed to properly evaluate the evidence adduced at the trial and apply it to the law of the offence of murder.
Shifted the burden of proof from the prosecution and placed it on their client
Unduly relied on circumstantial evidence to infer guilt upon their client.

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The dying declaration
The trial court relied chiefly on the evidence of the supposed dying declaration of Jackline Uwera’s husband to determine that his death was caused intentionally, that is, with malice aforethought. The test on dying declaration has been well established by case law. While corroboration is generally not mandatory to fortify a dying declaration, courts have held that it is prudent to have it corroborated. Courts have specifically held that it is very unsafe to base a conviction on a dying declaration unless there is satisfactory corroboration.

The admissibility of dying declarations has its origins in the general belief that a dying man is unlikely to tell a lie. The need for satisfactory corroboration however arose over time as it has been shown that at the time of making a dying declaration, a person is in the face of imminent death and might be overcome by dread and anxiety, rendering him or her prone to confusion or susceptible to misperception. 
It has been held by the Supreme Court that the evidence of dying declarations must be received with caution because the test of cross examination may be wholly wanting; and might have occurred under circumstances of confusion and surprise.

Troubled marriage
The trial court correctly cited the legal authorities that caution on admitting dying declarations but found that the evidence of a troubled marriage satisfactorily corroborated what the deceased is purported to have said a few minutes before he died. The lawyers for the widow pointed out that a correct application of the law cited at the trial, when applied to the facts of the case could, in the circumstances, equally could have led to the deduction that the couple’s alleged marital troubles merely informed the supposed dying declarations rather than confirm them. 

The lawyers put it to the appellate court that it was, therefore, erroneous for the trial court to negate the highly probable alternative that the deceased alleged perception of the accident could have been influenced by his alleged marital woes. The evidence of the marital woes was equivocal and capable of supporting contradictory hypotheses of the case and could therefore not serve as good corroboration. The alleged dying statements of the deceased were in themselves equivocal and as such open to an infinite range of possible deductions.

Mother tongue
The dying declaration was made in the mother tongue of the deceased. The lawyers further submitted that the trial court erred when it relied on unofficial translations of the supposed dying declarations and imported legal meaning to them. The Prosecution did not submit any certified translations of the supposed dying declarations, but instead, the witnesses gave their own interpretations of the statements based on their personal comprehensions thereof.

Meanwhile, the facts were that Uwera knocked her husband at their home in Bugolobi and dragged him for over 10 metres under the car. Her defence was that she did so unintentionally, while the state said she actually intended to kill her husband due to property and marital woes. 

This case bears similarity to the Oscar Pistorius trial, in that in both cases, the accused persons never denied causing the deaths of the victims, however, they both claimed to have caused the deaths unintentionally which, if successful, would mean the crime would be reduced from murder to manslaughter. 

This case will go down in history as the first case with a notorious record of having the lead investigator of the state testifying as a witness for the accused person.

To be continued...

editorial@ug.nationmedia.com 

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