Defence lawyers seek to turn lead prosecutor into witness

At about 10:20 am, a bang goes off on the door of the court hall, signaling the arrival of presiding judge Isaac Muwata to start the day’s business which included reading a ruling that saw a charge sheet with Ms Katanga’s four co-accused slapped with one more charge.

Counsel Peter Kabatsi: My lord for the record, we on the defence side, have had no contact with the prosecution on agreed facts and this shouldn’t be attributed to us.

Judge: Let’s proceed. I’m introducing to you Mutonyi Sharp, Simon Otongo and Tabu Consulate as your court assessors. A1 (Molly Katanga and key suspect), do you know them?

Molly Katanga: No sir

Judge: Do you have an objection to being your assessors?

Molly Katanga: No

A2 (Ms Patricia Kakwanza): No

A3 (Martha Nkwanzi Katanga): No

A4 (Charles Otai): No

A5 (George Amanyire): No

Judge: Very well, in that case, the newly appointed court assessors take oath to start their work. Their role is to take evidence and advise at the end of the trial on whether they (suspects) should be acquitted or convicted but their opinion is not binding on court.

Prosecutor Samali Wakooli: My lord, we are ready to proceed.

Judge: How many witnesses do you have?

Prosecutor Wakooli: Two

Judge: Let’s proceed, let’s have the first one, the other one can wait from outside.

Counsel Kabatsi: My lord, before the first witness prosecution witness takes the oath, we have an objection to raise. One of the prosecutors in this trial is a prospective witness. Allow my learned friend [Bruce Musinguzi] to elaborate.

Counsel Musinguzi: Our objection is derived from Regulations 9 and 10 where one of the prosecutors is a potential witness. My lord, the prosecution attorney we are talking about is Ms Samali Wakooli, she is also the one who prepared and signed the indictment on 22nd January 2024. My lord, our objection arises from Regulation 9 of the Advocates Professional Conduct Regulations. My lord, not to strain the court, we have prepared the bundle of authorities, which we shall share with you and the prosecution.

My lord, Regulation 9 on page 2 of the authorities of that bundle, is that on the 22nd January 2024, the indictment that Ms Samali prepared and signed was read out in court, and my lord, paragraphs 32 and 34 of that summary of the facts in the indictment are the basis of this application, my lord.

My lord paragraph 32, stated that the SOCO (Scene of Crime Officer) visited the scene and picked samples for forensic analysis. It goes further to say that, the DNA examination on the pistol found that A1’s DNA (Molly Katanga’s DNA) was the most predominant on the trigger. The DNA analysis report shall be relied on during the trial.

Paragraph 34 states that the residence of the deceased (Henry Katanga) and A1 (Molly Katanga) has a CCTV installation in and around the premises but on police examination of the CCTV system, it was discovered that critical cameras had been tampered with. The CCTV report shall be relied on during the trial.

My lord, on the 3rd of May 2024, we were served with a DNA report, the DNA report on page 36 indicates that it was prepared on the 30th of April 2024…

Prosecutor Muwaganya: My lord, I’m sorry to interrupt our learned brother. We seem to know where he is going, and my lord, we feel our learned brother is proceeding irregularly because he is divulging evidence that is not yet presented before this court. He is passing over exhibits and technical reports before they are formally presented. … it will prejudice this court, it’s improper…., so we object to the casual manner in which our learned brother is approaching this matter.

Judge: You (Musinguzi) should not be a prosecutor in this matter.

Counsel Musinguzi: Yes, but I was just laying the background my lord that the evidence they have supplied us with is that DNA report. My lord, I don’t know whether they are saying it’s not the one they gave us, we would probably understand the basis of the argument.

But for us to make our point my lord, we have to refer to that DNA report and I’m not going to the substance of it. I was just referring to the dates only.

Prosecutor Muwaganya: My lord, our brother does not pass over evidence in court under the guise of laying background. My lord, this is criminal litigation where evidence is not passed over to the court casually. If he wants to rely on technical evidence, he can only do so through the right procedure of passing it through competent persons.

Counsel Musinguzi: … My lord, the reason we want Samali Wakooli to appear as a witness is because of four reasons. This was a prosecution-led investigation, and at the time that the prosecution signed and prepared the indictment on 22nd Jan 2024, my lord, the DNA report which is the basis of paragraph 32 had not yet been prepared.

So by the time Samali prepared the indictment, the DNA report was not in existence. However, her summary of the case makes extensive reference to the DNA report. Therefore, my lord, we shall need Samali Wakooli to come and address us based on paragraph 32 of the summary of the indictment.  My lord, we contend that there is a great likelihood that there could have been a prosecutorial bias, which resulted in a prosecutorial fallacy in this case and therefore, we would need Samali Wakooli as a witness to come and explain where she got the facts of paragraph 32 of the summary of the indictment and yet my lord at that time, the DNA report did not exist.

On that basis, we ask Ms Wakooli to recuse herself from this case. We had discussed it with her informally so she had notice that we would raise it.

Prosecutor Muwaganya: My lord, we have heard the submissions from counsel. In his application, he highlights several authorities that we want to address the court about. But to enable us to prepare ourselves well, we ask for a one-hour stand over. My lord, my colleagues say they intimated this application to us, but we didn’t know exactly what it was.

Judge: Let’s reconvene at 1pm.

Court resumes shortly after 1pm with Chief State Attorney Jonathan Muwaganya responding to the application

Prosecutor Muwaganya: My lord, this is an application for what counsel called the recusal of a prosecutor in the name of Ms Samali Wakooli.

Under Article 120, (3), prosecutors perform their duties in the delegated authority by the DPP.

My lord, among the roles of the DPP is to institute criminal proceedings against any person in a court of competent jurisdiction. For offences triable by the High Court, the DPP does so through a committal process under section 168 of the TIA (Trial and Indictment Act). The DPP is required to file an indictment and a summary of the case signed by her or by an officer authorised by her on that behalf, acting by general or special instructions.

It’s not evidence to be relied on and that is why Section 168 of MCA (Magistrates Court Act) allows a prosecutor to participate in its preparation. Secondly, the summary of the case is not evidence, which is the reason why the prosecution is required to summon and lead witnesses to prove its content. It is required that the summary shall contain such particulars as necessary to provide reasonable information as to the nature of the offence to which the accused is charged. The law talks about information as opposed to evidence.

… my lord, the law allows the prosecutor to prepare it (indictment), sign and file it in court.  Just like a plaint in civil matters. So the mere preparation of the summary does not make a prosecutor a witness in a matter.

Our learned brother cited Section 9 of the Advocates At. That Act governs relationships between clients and advocates. Even the definition of an advocate in that Act refers to that person who has entered into the Act. State Attorneys are not entered on the Advocates Roll. They are not specifically governed by the Advocates Acts, we are not under any obligation to enroll before we practice. My lord, prosecutors are constitutional agents of government. So it clearly shows that we are not governed by the law, yes the principles but not the law.

Under Article 120 (6), the functions conferred on the DPP, demand that the DPP shall not be subject to the direction or control of any person or authority including the Law Council, which our learned brothers are subject. So Regulation 9 is inapplicable to the DPP or her agents who include Ms Samali Wakooli….

Our learned brother also argued that this was a prosecution-led investigation. He does so without any evidence whatsoever, and with respect, his submissions are simply from the Bar, as there is no rule that every case prosecuted by the DPP is prosecution-led or guided.

My lord our learned brother took issue with dates in the report vis a vis in the summary, investigations are progressive in summary and no law prohibits the prosecution from relying on preliminary reports provided that the final reports to be relied on are disclosed before trial.

Therefore, it cannot be said that a prosecutor who participated in the preparation of the summary can be called as a witness to explain issues of dates, related facts, etc in the summary.

In any case, my lord, our brothers kept mentioning that Ms Samali would be required as a witness, it was not clear to us, a witness for who, certainly, we don’t need her as the prosecution and the defence has no right to summon any person as and when they wish. Their right to determine who should be a defence witness is in Section 75 of the TIA as my lord this section only entitles the defence a right to have witnesses that they named at the Magistrates Court at committal. 

There is no evidence, even the remotest kind, by our colleagues at the mention of Ms Samali as a defence witness. I don’t know where our good learned brother got this that he would just wish and summon a witness….

In our circumstances, there exists no advocate-client relationship with any of the accused persons, so that authority is not applicable. It is our considered submission that this application is made in bad faith, a waste of court time calculated to cause the delay in the trial.  It has no legal basis. We invite your lordship to dismiss it.

Judge: Ruling on July 9 and A1 (Molly Katanga) is further remanded.