Kirabo’s delayed murder trial: A travesty of justice?

Last week, the High Court in Mukono found, Dr Matthew Kirabo, guilty of the grisly murder of his girlfriend, Desire Mirembe Jemima.

However, by the time he was convicted, it is believed that Kirabo had slipped across the porous borders and he is currently hiding outside the country under a new identity.

The prosecution adduced evidence showing that on the night of July 11, 2015, Kirabo, who had a fractured relationship with Mirembe, lured her into a death trap at Café Javas, Oasis Mall.

Under the pretext of resolving their differences amicably, this was the last time Mirembe, a medical student at Makerere University, was seen alive.

At about 10pm, Kirabo, acting upon his impulsive rage, drove Mirembe in a car towards Jinja on Kampala-Jinja Highway, branched off 50 meters off the highway into Lugazi sugarcane plantation where he slit her throat.

Local residents recovered her body on July 11, 2015.

Kirabo later reported to police and he was arrested. Through a charge and caution statement, he confessed to have killed Mirembe.

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Relying on 15 witnesses and Kirabo’s confession, Justice Henry Kaweesa convicted the accused in absentia and as part of the evidence, he relied on Kirabo’s confession and a charge and caution statement he made at the Central Police Station Kampala.

A confession is defined as an unequivocal admission of having committed acts amounting to a crime and includes not only admission of the offence, but also admissions of substantially all incriminating facts, which constitute the offence.

In the video footage, Kirabo is seen leading a team of detectives to Nakumati Oasis mall where he picked up the deceased and later led them to the scene of crime in Lugazi to demonstrate how he killed Mirembe.

The judge revealed that as a way of disguising his plot and creating a false alibi, Kirabo barely after killing Mirembe visited her hostel and sent messages to her relatives. He later dumped her phone at the Kitezi garbage-dumping site to cover up his tracks before going to church.

The convict remains on a warrant of arrest. However, his absentia has renewed the debate on bail.

Bail is a fundamental right provided under article 28 of the Constitution and it is within the purview of a judge to grant it or not.

However, section 15 (3) of the Trial and Indictments Act provides for exceptional circumstances under which bail ought to be granted for capital offences like murder.

Among the exceptional grounds includes grave illness certified by a medical officer of the prison or other institution.

The other two grounds include a certificate of no objection signed by the Director of Public Prosecutions and the infancy or advanced age of the accused.

Questions

Kirabo, who is 26 years, is not of advanced age. Was he suffering from any grave illness that couldn’t be treated by a medical officer of the prison and was this illness certified so that his case could fall within this exceptional ambit?

Did the DPP’s office grant a certificate of no objection?

Speaking to Daily Monitor, the publicist in the Office of the Directorate of Public Prosecutions, Ms Jacquelyn Okui, said: “We have the TIA [Trial on Indictment Act] and Magistrates Courts Act [MCA] that qualify the provision of Constitution regarding the grant of bail and provide for circumstances. You can see that the law recognises that there are individuals who may need to be granted bail basing on the circumstances. Its judicial officers who grant bail based on circumstances presented to them whether to or not to grant bail.”

She revealed that in the Kirabo case, ‘the ODPP did not grant a certificate of no objection to the grant of bail. We actually objected to the grant of bail and presented the argument that there were no exceptional circumstances to warrant the grant of bail.’

The spokesperson of the office of the DPP says it is often frustrating when judicial officers release suspects on bail.

What DPP says

“By the time the ODPP decides to oppose to grant of bail, it is because we have reasonable grounds to suggest that such a suspect should be in prison during his trial. And so when such a suspect is given bail it leaves a bitter taste, and its even worse when a suspect cannot be re-arrested just like Mathew,” Ms Okui argues.

There is also a need to codify the rules on bail as Ms Okui says, “It would be helpful to have parameters to guide the exercise of discretion by judicial officers and ensure uniformity in the manner in which bail proceedings are handled by them. It would also be helpful if criminal matters are handled expeditiously.”

This is what has touched off a combustible debate about when to grant or decline to grant bail to suspects.

For instance, in 2020, two High Court judges denied granting Belgian national, Bernard Glazer bail on grounds of advanced age and grave sickness. He was 73 and was suffering from stage-four cancer.

He later on died in prison.

The President has, for instance, vouched for a constitutional amendment that denies bail to suspects in capital offences and terrorism.

But there are fears that capital offences have been weaponised to target politicians and this would flout the presumption of innocence doctrine.

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“This school of thought fails on very many counts; one is that all of us are potential offenders and we know that the criminal justice system in Uganda is not effective or has weaknesses. There are weaknesses in investigations, prosecution, in the trial process, and as such since the practice here is that one has to be arrested before the investigations are complete, the right to bail gives an opportunity to the system for investigations to continue while the accused enjoys some temporary relief,” argues the Executive Director for the Foundation of Human Rights Initiative (FHRI), Livingstone Sssewanyana.

In the extreme, whereas suspects who are politicians may not be granted bail, other suspects of capital offences where prima facie evidence has been adduced, may walk scot-free after being granted bail.

Delayed handling

For Kirabo’s case, which was cause-listed in 2015, judgement was delivered seven years later.

By the time of the judgement, Kirabo had graduated from medical school and got employed at Mulago hospital.

He had also filed an application in the High Court of Mukono to have his passport returned to him so that he could travel to the United States to undertake his post-graduate studies.

Though court rejected the application, it’s not clear yet whether he obtained his passport through dubious methods or received another travel document to enable him flee the country.

He was also able to conduct a traditional wedding.

Judiciary spokesperson Jameson Karemani says the human resource requirements of the Judiciary ought to be addressed so that expeditious trials are conducted.

“All cases need to be prioritised, which requires financial and human resource; recruitment of more judges. If you were to deny bail then expedite trial; cause list his case and they know their fate. The best way to tackle all this is to avail human resource and financials, so that a person is convicted in time or exonerated. Averagely it takes about 30-45 days hearing and delivering a judgement.”

In 2009, the Foundation for Human Rights Initiative (FHRI) filed a petition before the Constitutional Court challenging among other sections in the Trial and Indictment Act (TIA) that provide for exceptional circumstances for crimes such as capital offences before bail can be granted.  The FHRI argued that these sections contravened article 23 of the Constitution.

In an appeal field before the Supreme Court in 2018, these grounds were rejected.

Justice Esther Kisakye ruled that, “whereas court is supposed to bear in mind the rights of an accused person when considering his or her bail application, court should not lose sight of the needs and interests of society to prevent and punish crimes committed within its midst. This Article imposes on courts the duty to ensure that they do not only consider the rights of an accused person applying for bail. Rather the court should also consider the interests of society at large.”

Mr Ssewanyana says though there are loopholes suspects exploit to jump bail, it shouldn’t be a justification to abolish bail.

“In the determination of who can get bail, certain conditions have been fulfilled including determining that once granted bail, [it] will not be jumped but of course there are cases when this has happened. That is not to say that bail should be denied. It is important to guarantee someone’s liberty once they come into conflict with the law.”

Does granting or rejecting to grant bail heavily weigh against indigent suspects and favour the rich?

“Now there are people who are denied bail because they cannot fulfill conditions or some people are given stiff conditions or some are denied bail when they are serial offenders. But the exercise of discretion is a subject of debate, but as such there is every reason to create a framework within which bail should be given. That is why most recently in the contestation over bail the judiciary issued guidelines on granting bail and we believe once they are applied properly then we should not get into the argument of whether someone deserved bail or not,” Mr Ssewanyana postulated.

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In principle, bail is a constitutional right, which is within the discretion of a judicial officer to grant or deny. But while exercising their discretion, judicial officers should follow clear guidelines.

The country today bears the collective guilt of the grisly death of a young promising student who was eager to scale the lofty heights in medical practice. Today, the family continues to grapple with the emotional scars as the person responsible is in hiding away from the jurisdiction of court where he is supposed to face a sentence after he was found guilty for the offence of murder.

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