
Writer: Gawaya Tegulle. PHOTO/FILE
Heaven knows I have a very deep and healthy respect for judges and magistrates; but that is different from being afraid of them. So, on this occasion, a while ago, I did tell a judge to their face that they’d made a terribly wrong decision. And I did so very gently and respectfully, but firmly.
My client was charged with aggravated defilement and faced the death penalty. The alleged victim was a girl of tender years; five or six. The evidence was riddled with gaps, inconsistencies and contradictions, generally speaking and was at best, very weak. The judge, though, seemed to have made up their mind to convict.
Try this for size: the girl’s private parts had been found intact. The medical examiner however said he had found some fluids around her thighs which looked like semen. During cross-examination, I asked him whether he was sure it was semen; he said he wasn’t. Had he taken a picture of the same?
No. Had he scientifically tested the fluids to ascertain what exact substance they were? No, he hadn’t. I then asked whether he had done a DNA test to prove that the fluids came from the accused person; he hadn’t. Even a layman reading this will have known by now that the accused was entitled to an acquittal. I was shocked therefore, when the assessors recommended a guilty verdict and the judge (who’s not bound by their opinion) agreed. I think assessors are corrupt, inept and useless in courts.
Before sentencing, I calmly stood up to the judge and expressed my disappointment at the decision. I suspect that is why, probably with their lordship feeling guilty, my client got just six years in jail, instead of the death penalty or the crazy 40-year jail terms that other chaps had received from this judge.
I filed an appeal within 30 minutes, but I was also comforted by the fact that with good behaviour, my client would serve just two thirds of the sentence and walk out in four years. It’s called “remission”. Oh, and Ugandans please, let me say it here and now: it’s not true that in prison, day and night are counted as separate days!
This case belonged squarely to the forensic evidence domain where we focus on stuff like analysis of DNA, fingerprints, digital evidence, ballistics, facial recognition, and the like. Ugandan courts are largely weak on forensics and the law enforcement agencies are worse.
This is why it is very exciting that “hatta rongo rast” as Advocate Robert Rutaro might say, to mean “at long last”, Uganda has come up with what government has christened “The Forensic Evidence Bill, 2024”.
Good old-fashioned lawyers will tell you that there’s nothing as exciting as criminal court... when you have a good judicial officer! An offence is alleged to have been committed. Nine times out of 10, there is a complainant or victim who was at the wrong end of the offence and they are desperate to see justice. The accused swears they are innocent. Then there is a public prosecutor (locals call them ‘siteti’, for State Attorney), nicely facilitated with the state machinery, who’s paid (and is determined) to get the accused in jail - half the time with the help of falsified evidence and lying witnesses who won’t go to heaven. And then there’s you, the defence lawyer who’s been paid to ensure that the accused walks home. The ensuing fun might only be matched by the Constitutional Court on a good day.
With The Forensic Evidence Bill, 2024 coming up, life in criminal court can only get more exciting and if I were a law student reading this, I’d study harder: graduation and the Bar Course can’t come fast enough! The new law will offer an opportunity for Uganda to catch up in the world of forensics. It will make the path to achieving justice much easier, ensuring that the guilty are convicted while the innocent walk home to take tea with family.
Problem though is that government got the Bill all mixed up. It lacks conceptual clarity and omits much of what lawyers expect in a law of its kind. I’ve written a brief to the Uganda Law Society with the recommendation that the Bill is nowhere near ripe for parliamentary consideration; it needs a complete makeover.
Gawaya Tegulle is an advocate of the High Court of Uganda [email protected]