The defective evidence used  to convict Mrs Uwera part 2 

Saturday March 06 2021
By Sylvester Onzivua

A trial court relied on statements attributed to the Mrs Jackeline Nsenga Uwera’s husband shortly before he died to convict her for the crime of murder. These statements are known as dying declarations and are not in themselves unequivocal. The evidence in respect of these statements was given by the relatives of Mrs Uwera’s husband with whom she had an acrimonious relationship. 

To Mrs Uwera’s lawyers, the trial court erred when it did not put into consideration the prevalent family strife between their client and her in-laws. The trial court, nevertheless, made reference to the civil suit filed in the Family Division of the High Court regarding the property of Mrs Uwera’s husband.  Mrs Uwera testified that upon lodging a caveat on the application by her in-laws for the grant of letters of administration to the estate of her husband, the relationship between her and her in-laws deteriorated further.
Her in-laws approached the lawyer representing her at the Family Court with an offer to stop pursuing the murder case if she removed the caveat. The trial court however did not address its mind to the credibility and the motive of Mrs Uwera’s in-laws who testified as prosecution witnesses when these facts came to light in the trial. 

In law it is a gross misdirection to decide that an accused person is guilty after considering the prosecution case alone without considering the evidence of the accused. 

Shifting the burden of proof
The prosecution brought a case of murder against Mrs Uwera who, however, raised a defence that what happened was an accident.  The forensic evidence, which court ignored, proved beyond any shadow of doubt that the car that Mrs Uwera drove that evening hit the gate which was in the process of being opened and not her husband as purported by the dying declaration. 

The lawyers representing Mrs Uwera raised a fundamental point of law that the case should have been decided on the strength of the evidence of murder and not on the supposed weakness of the evidence of an accident. It was not the responsibility of the defence to prove that it was an accident; rather it was the job of the prosecution to prove beyond reasonable doubt that Mrs Uwera intended to kill her husband.
Prosecution failed to prove that Mrs Uwera knew who had come to open the gate for her. The trial court, however, in the judgment shifted the burden of proving the accident to the defence and based the decision to convict Mrs Uwera on her failure to convince court that what happened was an accident. The concluding remarks of the initial judgment included the phrase “absence of further explanation at all as to how exactly the car jerked and knocked Mr Nsenga”.

Mrs Uwera’s lawyers submitted that this was a grave misdirection of the law as it imposed on the defense a burden of proof why the car jerked when she was in reality under no legal obligation to do so. This weakness in Mrs Uwera’s case should not have been the basis of establishing malice aforethought thereby leading to her conviction and sentence of 20 years.


The bad marital relationship
The main circumstantial evidence on which the trial court based its judgment was that Mrs Uwera and her husband had a bad marital relationship. There was, however, no evidence adduced to corroborate the element of malice aforethought based on the bad marital relationship. 

The evidence on record only showed that Mrs Uwera and her husband had challenges in their marriage; they were married and living in the same house, but they were not getting on as they used to.  In fact, despite the challenges, Mr Nsenga continued to provide for his wife and the family. One of the house helps told court that she did not witness any physical violence between Mrs Uwera and her husband.

It was also the consistent testimony of every witness who had lived with the couple that the two were not known to quarrel at all. Mrs Uwera was not known to be a violent person as stated in court by all the witnesses who lived with the couple.

This was totally different from the trial court’s deduction that the couple had woes which included violence, and threats of violence of the kind that could be said to lead to heinous crime. Most importantly, there is no evidence on record to suggest that there was a clear escalation of their marital woes during the time in question that could impute malice aforethought due to the bad marital relationship. 

The trial court, without reason, disbelieved Mrs Uwera testimony but instead concluded that she “was trying to paint a rosy picture of her marriage.”

Conduct of Mrs Uwera
The trial court completely ignored the actions and behaviour and distressed state of Mrs Uwera in the immediate aftermath of what happened. She laboured to seek help and rushed her husband to the nearest hospital. While on the way to the hospital, she apologized to him. She was also in constant grief and worry that her marital woes would be put in question to infer that she intended to kill her husband. Was this, in truth, the behaviour of somebody who had intended to kill or who had deliberately killed her husband? 

This article and the previous three are based on facts and submissions that were raised in court in when Mrs Jackeline Uwera appealed her murder conviction and sentence of 20 years’ imprisonment. It is also no secret that the Prosecution and the Police had a fractured relationship during this case.