Katanga case: Watching brief and everything in between

The late Henry Katanga and his wife Molly. PHOTO/FILE

What you need to know:

  • The trial of Molly Katanga, who is accused of murdering her husband, Henry Katanga, is yet to take shape, but with a lot of mistrust Henry’s associates want to have a say in how the case is prosecuted. They have hired private lawyers to look out for their interests. In this explainer, Derrick Kiyonga details the bounds in which they can operate. 

Article 120 of the Constitution mandate of the Office of the Director of Public Prosecutions (DPP) gives sweeping powers over all prosecutorial matters, including directing the police to investigate any information of a criminal nature. It also empowers the office to institute criminal proceedings against any person or authority in any court in Uganda.
In sign of what’s at stake in the murder case of Henry Katanga where his wife—Molly Katanga—is accused of ending his life on November 2, a team of private lawyers led by the former Deputy Attorney General, Mr Mwesigwa  Rukutana, and Mr Frank Kanduho, showed up in the Nakawa Chief Magistrate’s Court with a special request to support the DPP in what they termed as watching brief. This appears to have cracked open a proverbial Pandora’s box.

What is a watching brief and has it been used before in Uganda?
According to various legal documents, it is defined as an advocate who appears on behalf of a client who is not directly involved or has an interest in a proceeding in which one is not directly or immediately concerned. It is mainly used in criminal proceedings where an advocate follows up on the case on behalf of the complainant. 

For instance, Kampala Associated Advocates (KAA) was on watching brief on behalf of MTN Uganda during a criminal trial that spanned a couple of years in the Anti-Corruption Court. The telco had claimed that it lost Shs9.6b from its mobile money system.

Anti-Corruption Judge Lawrence Gidudu ordered Patrick Ssentongo, a former employee of MTN Uganda, to refund Shs5b and spend 10 years in prison. The case saw the KAA legal team observe proceedings and it was seen furnishing prosecutors with the information it deemed to be instructive. 
In 2015, KAA, again, was on the watching brief for MTN when Justice Paul Mugamba found six former employees of the telco guilty. They were red-flagged for illegally gaining access to the Mobile Money system before wiring cash amounting to more than Shs3b to various mobile money agent lines, and later withdrawing their loot.  

So why is KAA opposed to the idea of a watching brief this time round?
In the Katanga murder case, which has once again raised the role of advocates on watching brief,  Mr Rukutana and Mr Kanduho were given instructions to be on the watching brief by the deceased’s associates—Barnabas Taremwa,  Freddie Karara Machwa, and  Naomi Nyangweso. The key thing to note is they wanted to go beyond just observing but also making submissions of “procedural nature” if the need arises.  
Specifically, Mr Kanduho said Uganda should be copying from Kenya’s criminal system where the watching brief has evolved. 

What he was alluding to was Article 50 (9) of Kenya constitution which mandates Parliament to enact laws that will guide the state in protecting victims, enforcing their rights, and ensuring their welfare before, during and after the trial of the accused person. 
In 2014, Kenya’s president signed into law the Victim Protection Act, 2014 which seeks to protect all victims of any offence under Kenyan law and provide various remedies to the victims.  

Under Kenya’s Victim Protection Act, the victim and his associates are guaranteed the right to submit any true information that they consider important. 
This information, the Act says, must be considered by the various authorities at different stages of the criminal justice process such as at trial, appeals, plea bargains, bail hearings, sentencing, and hearings before the Advisory Committee on the Power of Mercy. 

So how does an advocate on a watching brief in Kenya’s criminal justice system go about their job?
That advocate does not per se perform the duty of the prosecutor but they play a critical role in guaranteeing that the evidence presented to the court is sufficient to secure a conviction. The KAA legal team that is representing all the accused people in the Katanga murder case that include Molly, Patricia Kakwanza, Dr Charles Otai, George Amanyire, and Martha Nkwanzi Katanga, didn’t agree with the idea that an advocate on watching brief should go beyond observing.  

In a bid to keep Mr Rukutana and Mr Kanduho far from prosecution, Mr Bruce Musinguzi, a partner at KAA, cited the Nigerian Court of Appeal case in which it ruled that prosecution is strictly a role of the state.
“Apart from the fact the counsel on watching brief for the victim of the case can only be seen and not heard, the Nigerian Court of Appeal ruled in the 2015 case of Adio versus Federal Republic of Nigeria that it’s the responsibility of the government to prosecute or grant leave to prosecute   crime which is the subject matter of this charge,”  Mr Musinguzi proffered.   
Under Common law and rules of the High Court’s International Crimes Division in Uganda, he said the advocate on watching brief is not permitted as an active participant to be able to cross-examine witnesses.
“They have to channel all their input through the prosecutor. This is done so that the principle of equality of arms, which is sacrosanct under the right to a fair hearing, is not offended,” Mr Musinguzi explained.

He said an advocate on watching brief for the victim of crime can only be seen and not heard and in the event of wanting to do more for the virtual complainant the advocate must seek leave of court through an application.
“The counsel on watching brief should be aware that he/she is not entirely impartial as they are looking out for the interests of the victims of crime. In so doing they should ensure fairness and that the interests of justice are met,” he said. 

Can the term watching brief be used interchangeably with amicus curiae?
No. Put simply, amicus curiae is a friend of the court. When Mr Rukutana told the Nakawa Court Chief Magistrate, Mr Elias Kakooza, that he was coming in to help both sides as an officer of the court, Mr Elison Karuhanga, another partner at KAA, was prompted to submit that the person who helps the court is an amicus curiae. 

Mr Karuhanga also told Mr Rukutana that he needs to make up his mind whether he is on watch brief or amicus brief as he can’t be both. 
Under the Ugandan judicature rules, amicus curiae is defined as a person or organisation that is not a party to a suit but who participates in the litigation by providing the court with important information intended to assist the court in making an informed decision.

According to rule 5(e) of the Judicature Amicus Curiae Rules, for one to be allowed as an amicus curiae the submissions of the person or organisation must draw attention to relevant matters of law that are useful, focused, and principled.

In the application of Prof Joe Oloka-Onyango and Others versus Amama Mbabazi, one of the principles laid down by the Supreme Court is that the amicus curiae should address the court on points of law not raised by the parties but is of concern to the court. 

“If they are saying they are neutral then they should make an amicus application; not being on watch brief,” Mr Karuhanga said.
The Nakawa court rejected the idea that Mr Rukutana and Mr Kanduho would prosecute with the DPP. The case will eventually go to the High Court where the two lawyers insist they will make their case. 

“We will hold a watching brief throughout the term of proceedings. Whenever there are court proceedings we shall be there. We are not prosecutors, but we can advise. We can recommend it. We can even raise concerns of a procedural nature,” Mr Rukutana said.