Kiiza Besigye v Uganda (Criminal Session 149 of 2005) [2006] UGHC 89 (7 March 2006)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA

# **HIGH COURT CRIMINAL SESSION NO 149/2005**

### COL. (RTD) DR. KIIZA BESIGYE:::::::::::::::::::::::::::::::::::: VS **UGANDA::::::::::::::::: \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\***

## BEFORE HON. JUSTICE JOHN BOSCO KATUTSI

#### **JUDGEMENT**

The accused at the bar is indicted for rape, an offence under section 123 and punishable under section 124 of the Penal code Act. It is alleged that during the month of November 1997 at Luzira in the Kampala district he had unlawful carnal knowledge of JOANITA KYAKUWA without her consent.

Prosecution examined a total of six witnesses. JOANITA KYAKUWA is the complainant. In her evidence she said that between 1997 and 1998 the accused was her guardian. She went to live at his home in Luzira in 1997 after her "A"level. Her Aunt SAUDA KIBIRIGE was a friend of WINNIE BYANYIMA and that is how she came to live at the home of the accused.

When the "A" level result came out she had passed but not sufficiently to secure a government sponsorship. The accused offered to assist her. He took her to Makerere University to get admission forms. She was admitted and offered a BA in Arts. For her accommodation she got a room at SANKARA HOSTEL. She moved to the hostel in October 1997. She was spending her weekends at Luzira at the home of the accused. On one Saturday, a driver went for her and took her to Luzira at the home of the accused. Between 7.30p.m and 8.00 p.m. the accused got home. At about 8.30 P.m. she went into the study room to watch TV she was dressed in shorts and sleeveless blouse.

Accused went to the study room and the two exchanged pleasantries. All over a sudden accused started caressing her thighs. As she tried to move away he went on caressing her all

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over the body. She asked him what he was up to and the answer was that all was going to be okay. She tried to pull away but she was no match for him. Telling her not to shout he carried her into the visitor's room. He put her on the bed and still telling her not to shout, he forced her shorts off and removed her knickers. He pulled down his tracksuit with one hand as the other hand was holding her arms and entered her by force and had sexual intercourse with her. After entering her she gave up all resistance and succumbed to fate. After satisfying his lust he went to the bathroom and returned back to her with a small towel. She was crying. He sat on the bed, gave her the small towel and asked her to clean herself. She obliged. She then run out of the room while crying and went downstairs. As she was in her room crying a maid called Aisha went to tell her that supper was ready. The maid asked her what was wrong. She told the maid that Dr. Besigye had raped her. In a nut shell that was the story as told by complainant.

Aisha Nakiguli appeared as Pw2. In her evidence she said she worked for the accused at his home in Luzira. She could not recall the period during which she worked for the accused. She went to work for the accused with the assistance of Jaja Marita. The accused was married to WINNIE who was not always at the home especially during the weekends. Joan was staying at the home of the accused but could not remember when she joined the family of the accused. While working at the home of the accused and during the period she could not remember but which she thought was between October and November of unknown year and between 10.00 and 11.00 p.m. Joanita found her in the kitchen and told her that the Doctor had had sex with her. She was crying. She tried to console her. Then the complainant moved down to her room. Later she went to call her for supper but complainant declined. She was still crying. The following day Joanita went back to school.

In 2001 she went to work at the accused's farm at Kasangati. During that year police went to her and asked her about the accused and Joanita. She feared to tell them about her boss. Later they went back to her still asking her about the same subject. She did not oblige. In 2004 they again went back to her. This time she was arrested and taken to police where she spent a night. On the following morning she was taken to CMI or some place she thought was CMI. She would not remember the place. At that unknown place she was again asked about the same subject as before.

This time she succumbed and talked and told them in the presence of Malita and Joanita what she knew between Joanita and the Doctor.

John Musinguzi appeared as PW3. In his testimony he said that he first met Joanita in 1999. He met her again in 2001 around Ntinda. She had called him to meet her near Kabila Club. When they met she referred to a story that had appeared in The Confidential newspaper, saying she had been threatened with death and needed protection. She asked him whether he would assist her to see the President. He decided to help her. He contacted the private secretary to the President. An appointment was fixed and Joanita met the President.

James Lwanga appeared as PW4 and said he was a holder of a master's degree in applied science majoring in Psychotherapy/counseling. Joanita was her client in 2001. She was counseled on HIV / AIDS problem.

Malita Namayanja appeared as PW5. In her testimony she testified that she knew the accused in 1981 through the President. She described herself as combatant. Accused asked her to give him Aisha to work for him at his home in Luzira.

The last witness was Elizabeth Kutesa the Director of Criminal Investigations Directorate in the Uganda Police Force. In her testimony she said that she received instructions from the Inspector General of Police about a girl who had been sexually assaulted to the effect that His Excellency the President had directed that the matter be investigated. The girl was called Joanita Kyakuwa and was staying at state House Entebbe. She directed her officer Florence Okot DSP to take up the matter. From the report Florence Okot DSP submitted to her she directed that the matter be investigated.

In a nutshell the above was evidence from the prosecution side.

Accused elected not to say anything by way of his defence or to call witnesses.

#### **General rule of construction.**

Section 1 of the Penal Code Act enacts as hereunder:

*"This Code shall be interpreted in accordance with the principles of the legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly*

*provided, to be used with the meaning attaching to them in English Criminal Law and shall be construed in accordance therewith.* "

This is a charge of rape. Prosecution has to prove the following ingredients of the offence.

- a) Sexual intercourse. - b) Lack of consent on the part of the complainant. - c) Accused as the ravisher.

On sexual intercourse it is not necessary to prove the completion of the intercourse by the emission of seed, but the intercourse is deemed complete upon proof of penetration. Proof of rapture of the hymen is unnecessary.

On consent it must be proved that the rape was committed on the complainant by force and without her consent: **R v. BRADLEY 4 CR. APP. R.225.** The prosecution must prove either that the girl physically resisted, or if she did not, that her understanding and knowledge were such that she was not in a position whether to consent or to resist. **R v. HOW ARD (1966) I W. L. R.13.**

#### **Evidence of the complainant:**

In a case of rape, the fact that a complaint was made by the complainant shortly after the alleged offence, and the particulars of such complaint, may be given in evidence so far as they relate to the accused, not as evidence of the facts complained of, but as the evidence of the consistency of the conduct of the complainant with her evidence given at the trial: **R v. LILLYMAN (1896) 2 Q. B.167.** Such complaint cannot be regarded as corroboration of the story of the complainant: **R v. COULTHREAD, 24 CR. APP. R.44.**

If complainant concealed the rape for any considerable time after she had opportunity to complain, and if the place where the act was alleged to have been committed were such that it was possible she might have been heard, and she made no out cry; these and the like circumstances carry a strong but not conclusive presumption that her testimony is false or feigned.

#### **Corroboration:**

Though corroboration of the evidence of the complainant is not essential in law, it is, in practice always looked for and it is the practice for the court to warn itself against the dangers

of acting upon the uncorroborated testimony, particularly where the issue is consent or no consent. R v. GRAHAM, 4CR. APP. R.218.

Independent evidence of the distressed condition of the complainant soon after the alleged offence may amount to corroboration: R v. REDPATH (1902) 46 CR. APP. R.319.

Onus of proof: Here I cannot do better than echo the words of VISCOUNT SANKEY L. C in **WOOLMINGTON v. THE DIRECTOR OF PUBLIC PROSECUTIONS (1935) AC 462** at P.481

"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what $I$ have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case there is a reasonable doubt, created by the evidence given by either the prosecutor or the prisoner...the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained".

It has been observed by a prominent judge:

"Not, be it noted, of every doubt, but only a doubt which reasons can be given. To warrant an acquittal the doubt must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as, upon a calm view of the whole evidence conscientious hesitation of minds that are not influenced by party, pre occupied by prejudice, or subdued by fear." per KENDEL BUSHE CJ DUBLIN UNIVERSITY MAGAZINE XVIII, 85

# Evidence conflicting with previous statements:

Where a witness is shown to have made a previous statement inconsistent with his evidence given at the trial the court should not merely direct itself that her evidence given at the trial should be regarded as unreliable, but should also direct itself that the previous statement, whether sworn or unsworn does not constitute evidence upon which it can act: R v. GOLDEN (1960) I. W. L. R.1169.

The above are the principles of law I intend to use in this judgment.

In his strong and characteristic forceful submission Mr. Byabakama Mugenyi the Deputy Director of Public Prosecutions said that while courts usually rely on medical evidence on the question of sexual intercourse, the absence of medical evidence here should not be interpreted as meaning that sexual intercourse did not take place.

Lack of medical evidence is explained by the fact that the complainant did not report to police. She did not report because she lived under the roof of the accused, was dependent on him for --.. education and accused had threateningly warned her never to reveal it to any one.

On lack of consent the learned Deputy Director of Public Prosecutions submitted that the complainant reported to Aisha immediately after the assault which reporting was consistent with complainant's story. He stressed the fact that the whole case here depends on the credibility of the witnesses at the scene and invited court to find that the evidence of Joanita (PWl) and Aisha (PW2) was incredibly credible (to use Vice President Bukenya's expression). According to the learned Deputy Director of Public Prosecutions, Joanita (PW 1) gave graphic account of what happened and was not vindictive, looking at the accused as her father.

Here he paused a philosophical question:

" *Why should the witness who appreciated what accused had done for her give a false story against him?"* (Here a quick answer would be that Judas Iscariot betrayed his master with a kiss and for a mere thirty pieces of silver.)

The learned Deputy Director of Public Prosecution went on to submit that the accused had given Joanita more than bread and butter.

On Aisha Nakiguli the learned Deputy Director of Public Prosecutions submitted that her arrest by police should not attract adverse comment. He referred to Article 17 of the constitution of Uganda and sections 95-97 inclusive of the Magistrates courts Act. He submitted that the arrest of Aisha was not an act of intimidation but an act to ease her situation. On the property given to Aisha after she had been humiliated into submission, the learned Director of Public

Prosecutions submitted this was mere "facilitation", the State having uprooted her from her property, it had moral responsibility for her plight.

For his part Mr. Mpanga who appeared for the defence submitted that the charge against the accused was sheer fabrication from the beginning to the last. It was natured and nursed at the State House and taken for implementation at the Criminal Investigations Directorate and it was now open to court to dismiss it and acquit the accused, the eloquent learned counsel submitted. The prosecution case was so discredited and unworthy of any belief so much so that the defence had not seen fit to put the accused in his stand, he bragged.

In this judgement I intend to begin my discourse with the credibility of Prosecution witnesses. Although prosecution examined six witnesses in truth there is only one witness whose evidence is vital to the outcome of this case. This is the complainant Joanita Kyakuwa. I hasten to point out however, that, the direct evidence of the witness must be tested and weighed in the same manner whatever the numerical strength may be. It can by no means be laid down as a general maxim that the assertion of two witnesses is more convincing to the mind than the assertion of one witness. The old Roman maxim "Testis onus testis nullus" is no longer good law or good sense late alone practice.

It is to be borne in mind that complainant JOANITA KYAKUWA is no ordinary and rustic girl. She was an undergraduate offering BA in Arts at the time material to this case. It is of note that this BA under graduate who claims to have been sexually assaulted was quite ignorant of the date late alone the month during which she claims to have been sexually assaulted. In her self recorded police statement exhibit D1 the following is what she stated:

*"I remember very well, it was a Saturday in evening around 8.00 Pm/9.00Pm(around October/November 1997). "*

Now that rape is a heinous act is beyond dispute. Surely could an undergraduate offering BA in Arts forget the day late alone the month on which she experienced a trauma that she claims to have affected her mental stability?

On 05-07-01 when she wrote her statement she gave her age as 22 years. In court she claimed that this could have been an arithmetical error. Did she need to do arithmetic to tell her age? The defence say this was a deliberate lie. The maxim falsus in uno falsus in omnibus" may not be sound in law nor indeed in practice but if one tells a lie here I don't see what can stop her from telling a lie elsewhere.

In her statement exhibit D 1 she states:

"/ *was bleeding and I had sustained some bruises in the vagina and since I was confused I went to the house maid (Aisha) and told her everything.* "

Now did she mean to say that if she had not been confused she would have not told the housemaid (Aisha) 'everything'? Surely this is what her statement self recorded conveys to the reader!

## In her evidence she stated:

-

*"He left me (that is after sexually ravishing her) and went to the bathroom .... Then he came back with a small towel. He sat on the bed. He gave it (towel) to me and told me to clean myself. I cleaned myself and he told me to stop crying.* "

Surely is it not strange that a girl who has been assaulted in the manner described by Joanita could wait for her ravisher to come back from the bathroom, accept the towel offered by the ravisher, clean her private parts in front of the ravisher as if here decency permitting, inviting the ravisher as it were, to whet more appetite?

## Again from her self recorded statement this is what she states:

*"And on Monday I went back to school, but from that time every weekend he continued to have sexual intercourse with me. And for all these times he talked to me in a way, which indicated that if I say something I will be the one in trouble. And all this time WINNIE was always away ... And for all these times he did not use a condom".*

So on every weekend in the absence of Winnie the roommate of the doctor, good Joanita would leave the discomfort of her hostel, move to Luzira to meet the good doctor for a treat. Talk of "Valentine day", to them every weekend is made to appear to have been "Valentine day"? I invite female activists to tell us whether that is the behavior of a girl that has been raped? I need more education in this area!

I now turn to the conflict between the statement complainant recorded herself and her evidence

In her self recorded statement exhibit D1she wrote:

"I was bleeding and I had sustained some bruises in the vagina and since I was confused I went to the house girl (Aisha) and told her everything."

In her evidence before this court she said:

"The maid came downstairs and told me that food was ready on the table. She found me seated on the cement crying. She asked me what was wrong? I told her that Dr. Besigye has forced him self on me."

The learned Deputy Director of Public Prosecutions invites this court to hold that the conflict here is minor. With the greatest respect I cannot accept. If the conflict here is not major, then I do not know what major conflict is! First the evidence in court is vague. "I told her that Dr. Besigye had forced him self on me." Here is a girl talking to a fellow girl. What did she mean by "has forced himself on me."? In her self recorded statement she had written, "I told her everything". Is "forcing himself on me" everything?

In her self recorded statement she appears to have volunteered a complaint to the housemaid. In her evidence at the trial she appears not to have volunteered any complaint. She was asked what was wrong and she responded.

In the case of R v. GOLDER (1960) I W. L. R.1169 at P.1171 LORD PARKER C. J said: "A long line of authority has laid down the principle that while previous statements may be put to an adverse witness to destroy his credit and thus render his evidence given at the trial negligable, they are not admissible evidence of the truth of the facts stated therein."

## At page 1172 **LORD PARKER** continued:

"In the judgement of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements whether sworn or unsworn, do not constitute evidence upon which they can act."

In the case of **ABASI KIBAZO V. UGANDA (1965) EA 507 at P.551** the Court of Appeal for East Africa the precursor of our Supreme Court said:

*"Thus in the case of R v. BRADLEY 4, CR. APP. R.225. It was held by the Court of Criminal Appeal quashing a conviction for rape that there was not sufficient evidence before the jury to justify them in bringing a verdict that the prosecutrix did not consent. One of the matters which influenced the Court of Appeal was an inconsistency in the girl's evidence at the police, court and at the trial. "(Emphasis mine)*

At page 510 the Court of Appeal for East African continued:

*"Apart from the fact that the evidence which was led to prove the charge came from the complainant alone and that she gave evidence which was false, there was the contradiction in her evidence and the statement which she made to the police. She told the police that intercourse took place on the bed, while in her evidence she said she was raped on the ground. "(Emphasis mine)*

Prosecution referred this court to the case of **UGANDA v. JOSEPH LOTE** CRl.session case No.10 of 1970 where **NTABGOBA, Ag. J** as he was then was held that:

*"It is what a witness states in court that the court will accept as that witness* ' *evidence because it is stated under oath and the defence has an opportunity of cross-examining the witness on it. What a witness says to the police is neither stated on oath nor is the witness cross-examined thereon by the defence, and can therefore not be treated as that witness* ' *evidence by the court.* "

I must say with respect that I am not bound by that holding. With the greatest respect I think that decision was given per incuriam.

1 now tum to the testimony of Aisha Nakiguli (PW2) which prosecution sought to corroborate the evidence of the complainant. Here is a witness who twice refused to talk to the police about the accused. She is arrested and taken to unknown place, which she thought was CMI. I take "CMI" to mean the Chieftancy of Military Intelligence. This is what she stated in her evidence:

*"That day I was interrogated. I did not say anything. The following morning I was taken some where I think CMI.* "

It is of note that as she described her ordeal, she broke down and cried. In order to justify her ordeal the learned Director of Public Prosecutions referred me to Article 17 of the Constitution of Uganda, Section 95-97 inclusive of the Magistrates Courts Act. With the greatest respect I find no substance in the Article and sections referred to by the learned Deputy of Public Prosecution and beg to be acquitted of discourtesy if I ignore them.

After being humiliated into submission Aisha Nakiguli was rewarded as it were with a house in the prime area of Nalya and a poultry business. In justification of the reward the learned Deputy of Public Prosecutions submitted:

*" ... again to Aisha, to tackle the issue of the assistance and facilitation she was given .. .! realised from cross-examination of this witness by the defence they were imputing, insinuating that Aisha was giving evidence to this court because she had been facilitated with the chicken business and a home, correct the witness was given those facilitations, we agree and it came from prosecution evidence that the witness Aisha. was given chicken business and a house ... They were (the police) duty bound to resettle her."*

Be that as it may and despite the oratory of the learned Deputy Director of Public Prosecutions, and while I do not go to the full length of imputing fraud on the part of the police, I am with respect forced to observe that the circumstances of this case seem to me to suggest a course of conduct by the police to secure evidence using methods that seem to amount to an abuse of process. Let us call a spade a spade. The largeness of the property offered to Aisha, the inadequacy of the alleged reasons for offering it and this inspite of the oratory of ~e learned Deputy Director of Public Prosecutions, raises a lot of doubts as to the real intentio~~ o: the State in offering that property to Aisha Nakiguli. Can such evidence be free from susp1c1on. It is tainted. It is disgraceful and unworthy of credit. No court of justice, nay a court of conscience could act on it. That being the view I take of Aisha's evidence, it follows that the evidence of Joanita lacks corroboration. And since I found Joanita's evidence suspect, her evidence has not been corroborated as prudence requires.

I now tum to the evidence of Elizabeth Kutesa, the Lady at the helm of the Criminal Investigations Directorate. Through her the defence tendered police minutes as exhibit D3. This document in a language lacking any ambuguity shows that first information in this case was recorded on 28-06-01. Prosecution adduced evidence to show that Joanita Kyakuwa the complainant in this case first ever lodged her complaint with the police on 04-07-01. This is well after the first information in this case was minuted. Re-examined on this weird anomaly the record shows the CID iron Lady saying the following:

"Q. I take you to the first information, ordinarily how is the first information obtained?

A. It is obtained from the complaint received.

Judge: What?

-

A. It is obtained my Lord from the details of the complaint, which has been received.

Q. Received from where?

A. Received from whoever has forwarded the matter to police.

Q. In this particular case the first information which is the minute you said was recorded by Florence Okot alright?

. A. Yes, it is.

Q. You told this court that you are the one who instructed her to make the first information?

A. I gave her the information.

Q. Where did you derive the information that you gave Florence? From the first information?

A. I had the publication.

Q. Which publication?

A. Confidential. It is a press release, one called confidential.

Q. By the time you gave this information to Florence Okot which you said you derived from the confidential publication, had you interviewed the complainant?

A. No, my Lord.

~

So, here we have a situation where the C. I. D boss has read something from a mere publication, she has not interviewed any would be complainant to say the least to authenticate the publication, is directing a junior officer to open a file against a newspaper created suspect. AU I can say here is: "May God bless this Pearl of Africa!"

But be that as it may. The so-called first information for whatever it is worth was not on rape. For the sake of clarity I reproduce it here below:

*"28-06-2001. 1405/c CIDHQTS.*

*Inquiries have been opened surrounding the allegation that Col. Dr. KIIZA BESIGYE while acting as a guardian to one KYAKUWA JOAN/TA unlawfully infected her with (HIV/AIDS) when he well knew his status. This unfortunate incident occurred around the years 1997-1999 around Kampala. "*

Here is a situation where a certain Col. Dr. KUZA BESIGYE has not been interviewed, has not been medically examined and yet he is said to have "infected" an unknown complainant, (for by this time the good C. I. D boss has not seen KYAKUW A JOANITA), with "(HIV) AIDS". It would appear to me in all fairness to the C. I. D boss that she is gifted with extra sensory perception. This surely must be good news for the Pearl of Africa! Suffice it to say that there was no scintilla of medical evidence to suggest that either Dr. Besigye or Joanita Kyakuwa were HIV positive nor indeed that if they were they shared HIV strain.

I think the learned Deputy Director for Public Prosecutions almost had it right when in his submission he said:

*" ... Prosecution concedes there were a number of short comings in the way investigations were done or conducted in this case.* "

I say "almost" because this is an understatement. The best way to describe the way the investigations were conducted and carried out is that it was "crude and amateurish" and betrays the intentions behind this case.

Let me end this discourse by borrowing some words of **LORD BROUGHAM'S** speech in defence of **QUEEN CAROLINE** some three hundred years ago:

The evidence )Jefore this court is inadequate even to prove a debt- impotent to deprive of a civil right - ridiculous for convicting of the pettiest offence- scandalous if brought forward to support a charge of any grave character- monstrous if to ruin the honour of a man who offered himself as a candidate for the highest office of this country. **SPEECHES 1,227**

In complete agreement with the Lady and gentleman assessors, I find that prosecution has dismally failed to prove its case against the accused. He is accordingly acquitted and set free forthwith. ~ Judge

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