Ms. Molly Katanga (right), the key suspect in the murder of her husband Henry Katanga, speaks to one of her lawyers Bruce Musinguzi at the High Court in Kampala on July 2, 2024. PHOTO | ABUBAKER LUBOWA.
The trial in which Molly Katanga is accused of killing her husband Henry Katanga this week made headlines after prosecution opened a Pandora’s box when it lodged a request to amend the charge sheet.
It is eight months now since the Office of the Director of Public Prosecutions announced that Ms Katanga would face charges of murdering her husband and businessman on the night of November 2, 2023. Also on the charge sheet were Ms Katanga’s daughters—Patricia Katanga Nkwanza and Martha Katanga Nkwanzi—who were accused of destroying evidence, an offence that attracts a maximum sentence of seven years. Charles Otai, a nursing officer, and George Amanyire, the gardener of the Katangas, were also part of the indictment, charged with accessory after the fact.
What prompted the move to amend the charge sheet?
Sources tell Saturday Monitor that the legal team of the accused, upon reading the charge sheet, concluded it was defective.
This, we are told, owed to the fact the charge sheet didn’t state particularly the evidence that had been destroyed by the accused.
This is precisely what MacDusman Kabega, one of the lawyers representing the accused, did once the case came before High Court Judge Isaac Muwata, this week.
Mr Kabega, who for decades has been representing murder suspects, pointed out that the particular charge of destroying evidence is incurably defective because it doesn’t specify what was destroyed.
“What are these items that are said to have been rendered imperative and destroyed so that we can prepare our client’s defence?” Kabega questioned.
This submission seemed to wake up Samali Wakhooli, the assistant Director of Public Prosecutions (DPP), who after asking for a break, didn’t only claim that she was amending the charge sheet to include the material that was supposedly destroyed by Ms Nkwanza and Ms Nkwanzi, but also was now adding Mr Otai and Mr Amanyire on the charge of destroying evidence.
Ms Wakhooli wasn’t done. She also moved to tag Ms Nkwanza and Ms Nkwanzi on the charge of being accessories after the fact. The aforesaid charge had been initially restricted to Mr Otai and Mr Amanyire.
These amendments predictably prompted protests from the defence lawyers, with Bruce Musinguzi, a partner with Kampala Associated Advocates, particularly pointing out that they were against the Trial of Indictments Act (TID).
“My Lord, I will start with Section 50(3), which my learned colleague counsel for the prosecution is relying on. There is an exception, my Lord, that there shall be no alteration to the indictment,” Mr Musinguzi submitted in the court this week.
Why did the move create such a hullabaloo?
It is easy to see why in criminal matters such amendments have previously provoked rulings from the judges rebuking the DPP’s office.
The DPP’s office in criminal trials has been at the centre of clumsily drafting charge sheets that later prove costly.
Mr Musinguzi’s arguments were buttressed in the 2014 murder trial of Peter Byansi, who was accused of murdering Mariam Nabirye in 2013 in the eastern district of Kaliro.
Justice Eva Luswata, who determined the case, pointed out several serious errors of omission that the DPP’s office had committed in drafting Mr Byansi’s indictment. The DPP’s office, Justice Luswata said, had not dated the indictment, which contravenes the 15 provisions of Section 27 of the TID.
The judge said she would have chosen to treat that omission as one that does not go to the root of the indictment. There was, however, a more serious omission. Justice Luswata said Section 22 of the TID stipulates that “every indictment shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
That Section, Justice Luswata said, should be read together with Section 25(c) of the same Act, which emphasises that particulars of any offence required by law, shall be mentioned in the indictment.
With the prosecution making late attempts to change the charge sheet, Justice Luswata said it was incurably defective and could not be amended and thus she had to release Byansi.
“In any case, it would be too late in the day to allow any amendment because all evidence has been called and the accused would have no chance to make a fresh plea to an amended indictment. In any case, the evidence disclosed in the summary provided at the point the accused was committed for trial, disclosed a five-charge of murder and not manslaughter,” Justice Luswata ruled.
She added: “The prosecution was at the inception of the trial allowed to amend the indictment and chose not to do so. An amendment at this point would be seriously prejudicial to the accused and would fall under the exception given in Section 50(2) TIA.”
Is this the only time the DPP’s office dropped the ball?
No. In fact, unlike the previously mentioned episode that happened away from the cameras, the DPP’s office was left embarrassed in the full glare of cameras when it attempted to amend the charge sheet of the youth who had been charged with terrorism after the torching of the Nateete police post to ashes. This was in the aftermath of the 2009 Buganda riots that were precipitated after the government stopped the Kabaka from visiting Bugerere County [Kayunga District]. Although the 22 suspects had been charged with terrorism in 2009, when the case came before the High Court’s Ralph Ochan, who has since retired, prosecution led by Vincent Wagona, who is now a judge, attempted to make changes.
Mr Wagona wanted to add a new charge that would leave the youth grappling with destroying buildings and property. The accused’s lawyers, led by Medard Lubega Sseggona, the Busiro East lawmaker, asked the court to reject such moves on the account that for years, his clients had been preparing their defence on the premise that they were facing treason charges. To Mr Sseggona, this move was “embarrassing” and was an attempt after two-and-a-half years of committing the suspects, of importing new cases.
Justice Ochan agreed with Mr Sseggona that it was unlawful to amend a charge sheet of suspects who have been on remand for a long time.
“I can’t believe that evidence wasn’t available to the state for all this time,” Justice Ochan said.
Fast forward to this week, how and why did the request in the Katanga murder case pan out the way it did?
In the Katanga murder case, Mr Musinguzi insisted that the court cannot try the accused on charges that have been largely an afterthought.
“My Lord, in the case of Byansi, what courts permit are defects that don’t go to the root of the offence. Now, as my learned friend has stated, making changes to the charges provided that they don’t include new accused persons, my Lord, we pray the amendment and alterations be rejected. More importantly, my Lord, the accused persons cannot be tried over an offence for which they were not committed, especially tried within this court,” Musinguzi submitted.
Unlike in the Byansi and Buganda riots cases, Justice Muwata allowed prosecution to amend the charge sheet without facing any penalty. The judge reasoned that the case is still in its early stages thus the accused have ample time to rethink their defence.
Wakhooli on the spot
Justice Isaac Muwata will on July 9 rule whether Ms Samali Wakhooli (pictured), the assistant Director of Public Prosecutions (DPP) should be recused from the case on account of prosecutorial bias.
Defence submitted thus: “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 the prosecution signed and prepared the indictment on January 22, 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.”
To which prosecution responded: “My Lord, this is an application for what counsel called the recusal of a prosecutor in the name of Ms Samali Wakhooli. 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.”
