The evidence used to convict Uwera 

Saturday July 31 2021
ins001pix
By Sylvester Onzivua

The High Court sitting at Kampala convicted Ms Jackline Uwera in 2016 of the murder of her husband, Juvenal Nsenga. Court concluded that she had deliberately caused the death of her husband when she ran over him with a vehicle. The evidence that the court used to convict her was however circumstantial; that is, the court relied on the circumstances surrounding the case to arrive at a guilty verdict.
 
Evidence before court was to the effect that the vehicle Uwera drove was in a sound mechanical reason, and to court there was no reason to make the car jerk, as explained in her defense. 
Court observed that the car was travelling at a high speed of between 40 and 60 km per hour when it hit Nsenga. To court there was no other explanation as to why Uwera would drive the car at such a high speed into her compound. Court compared this behaviour to that September 11 attacks in the US in 2001.
 
The couple had an acrimonious relationship for the 10 years before Nsenga’s death. A few days before the incidence, Uwera is reported to have threatened her husband over an allegation of infidelity with a one Lorreta, who had come to visit them. 
Court heard the words purported to have been spoken by Uwera to her husband and Lorreta “By the way, I am capable of doing very many things that I myself I am scared of and the length I can go to.” This evidence was unchallenged and court interpreted this to include murder. This was regarded as the motive of the murder.

The trial court also took into consideration the behaviour of Uwera immediately after the incident and at the hospital. She was noted to have exhibited calmness at the hospital and showed no affection at all when her husband was on his death bed. She is reported to have failed to surrender the phone of the deceased and the car keys, which items she denied having, until they were found in her bag. 

Court, as part of the evidence, considered the dying declarations of Nsenga; he had stated to a number of his relatives, before his death, that his wife had caused his injuries. This was interpreted to mean that he stated he had been deliberately killed by his wife. 
The appeal
Uwera’s appeal was based on a number of grounds; that the circumstantial evidence used in this case did not meet the required standard as set by law. 
Circumstantial evidence must invariably point to the guilt of the accused; there must be no other explanation other than that. 

Indeed if it can be scientifically be proved that what happened that evening was truly an accident, would the other pieces of evidence stand to convict Uwera?
It was also brought to the court’s attention that the element of malice aforethought was not proved beyond reasonable doubt. Prosecution ought to have proved that what happened that evening was not an accident but a deliberate calculated action by Uwera, aimed at causing the death of her husband. 
The lawyers submitted that the threats complained of were not explicitly death or murder threats and that the threats were not made directly or indirectly to the deceased.

The trial court was deemed to have erred when it relied on the dying declarations to infer premeditation. The dying declarations were not backed by any independent evidence. To the lawyers representing Uwera the dying declarations were, in truth, biased, subjective and emotional. 
They were, in reality, interpretations by the witnesses who were relatives of the deceased. 

The lawyers pointed out that there was discord between the relatives of the deceased and Uwera over the estate of the deceased, a factor which, no doubt, influenced the evidence they gave in the trial court.
Court disbelieved the account of the accident as narrated by Uwera in her testimony in court. The lawyers submitted that this was in effect, shifting the burden of proof to the defense and that the weakness of Uwera’s defense should not have been used as a basis for establishing malice aforethought.

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 Court of Appeal
The Court of Appeal considered two crucial issues in respect to the evidence as presented in the trial court; whether the incident that resulted in the death of Nsenga was an accident or not and whether the death of the deceased was caused deliberately, that is, with malice aforethought.

The Appellant Court defined an accident as “an unintended and unforeseen occurrence” which may refer either to an unintended act or an unintended consequence. To the court an accident may offer a defense to a criminal charge if successfully established. Further the defense of accident in law relates to the absence of the mens rea (guilty mind) element of an offence. This defense, if proved, successfully negates the actus reus (the act itself). The Penal Code in Uganda states that “a person is not criminally responsible for an act or omission which occurs independently of his or her will or for an event which occurs by accident.” 

Accident or deliberate act
There is no doubt that Uwera ran over her husband with a car and that he died as a result of the injuries he suffered. 

The ultimate question this case raises, notwithstanding the legal interpretations and arguments, is whether the incident that night at the Nsenga’s home was an accident or a deliberate and premeditated act and whether this was proved to the required standard. 
To answer this question it is important to try to scientifically reconstruct what truly happened that night.
                                                                                    
                                                            To be continued

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