STATEMENT ON THE CONTINUING EFFORTS BY THE REGIME TO DETRACT US, DISCREDIT US AND DETER OUR MISSION TO FREEDOM
In 1999 when Dr. Kiiza Besigye published a letter criticizing to the Museveni regime, his life changed immediately and forever. He was arraigned before the military court martial for apparently airing his views in the wrong forum.
In October the year 2000 he announced that he would run for president in the 2001 general elections. Now, if the letter had brought him problems, the declaration that he would challenge Museveni in an election turned him into the number one enemy Museveni and all state institutions in Uganda. This has been the case for the past 20 years.
In June 2001, a few months after the election, Dr. Besigye was arrested and questioned over treason. The Museveni regime claimed that he was training rebels in the Democratic Republic of Congo. Soon after his release, threats against his life increased and he was forced to run into exile where he spent four years.
In 2005, when he returned to Uganda to participate in the 2006 election. As soon as campaigns started, he was quickly arrested and charged with treason and rape. In charging him with treason, the regime claimed that he had links with the PRA rebels. They also claimed that he was connected to Joseph Kony’s Lord’s Resistance Army!
Regarding the rape case, the regime claimed that in 1997, nine years earlier, he had raped a daughter of a deceased colleague, a one Joanita Kyakuwa. Years later, High Court judge, Justice John Bosco Katutsi dismissed the rape charges as contemptible and a clear case of persecution by the regime.
Besigye and Bobi Wine have both faced off with governmentIt should be remembered that the rape case was prosecuted by the current chairperson of the Electoral Commission, Justice Simon Byabakama Mugyenyi. Gen. Kale Kayihura and the present URA Commissioner General, Mr. Musinguzi Rujoki played a critical role in the case.
On 16th November 2005, Dr. Besigye and his co-accused persons were taken to the High Court for a bail application. As the hearing was proceeding, armed security men dressed in black raided the court, and surrounded the holding cells in which the successful bail applicants were waiting to be released. As a result of this action, the bail papers could not be processed. The armed men infamously known as the Black Mamba entered into offices at the court and interrupted the processing of bail. The accused were returned to jail.
The army spokesperson at the time, Major Felix Kulaigye told the nation that the Black Mambas had been deployed to re-arrest the suspects in case they had been granted bail by the High Court, in order to ensure that they faced new charges that had been brought against them in the General Court Martial.
The population reacted with anger to these clearly trumped up charges and the persecution. The regime responded by banning all public gatherings, rallies and demonstrations related to his trial. Dr. James Nsaba Buturo, then Minister for Information banned talk shows and media debates on the matter, and was quoted as stating that the Broadcasting Council would cancel the licenses of any media house that did not take heed of this ban.
When Justice Joh Bosco Katutsi issued orders against the continued detention and trial of Dr. Besigye and others in the General Court Martial, Gen. Elly Tumwine defied the court order and continued the trial. When the Constitutional Court made further orders against Dr. Besigye’s persecution disguised as prosecution, Museveni vowed to fight the court ruling both legally and politically by appointing what he called cadre judges to the bench. Dr. Besigye would be nominated for the 2006 presidential elections while in jail!
Since then, the trials and tribulations of Dr. Kizza Besigye and indeed all those who fought alongside him have been long and unending. He has since lost count of the number of times he has been arrested and detained illegally. Of all the charges he has faced, he has never been convicted of even one.
In 2007, his brother, Joseph Musasizi Kifefe died under unclear circumstances, after spending several years in prison, having been charged with treason! Many other Ugandans lost lives in hundreds if not thousands as a result of the struggles for freedom and democracy, championed by Dr. Kizza Besigye and his fellow strugglists. Indeed, the husband to our Deputy President in charge of Northern Uganda, Rauxen Zedriga has been missing for over 20 years!
In February 2006, the state lined up one Moses Kizige, Member of Parliament for Bugabula County and former presidential advisor, to petition against Dr. Besigye’s academic credentials. The petitioner claimed that Dr. Besigye, who was Museveni’s qualified personal doctor, had used another person’s marks to join Kitante Senior School in 1969!
When Museveni is fighting his opponents, he stoops to any level and deploys every tool available. Unbelievably, the regime mobilized people from Dr. Besigye’s village to come and claim that indeed, he had used another person’s academic documents 37 years earlier. As usual, the intention of the regime is not that such ridiculous moves will succeed. The intention of Museveni is usually to detract his challengers and keep them busy answering very nonsensical questions, keep them busy in courts of law, to embarrass them, etc etc.
Another case in point which is related to what is happening to us now, is that in December 2004, when the Forum for Democratic Change first attempted to register as a political party, the state sponsored some individuals and other parties to ferociously fight against the registration of FDC. Various petitioners claimed that FDC was a rebel group, and went ahead to challenge its slogan, name and symbols as being linked to rebel groups. Years later, a case would be filed in court seeking orders to block FDC from nominating candidates!
Countrymen and women, I have labored to give this history first and foremost for the benefit of some of our brothers and sisters who were too young to follow these events. Let them know the history of their country. I invite them to read Dr. Olive Kobusingye’s book, the Correct Line, and Daniel Kalinaki’s Kizza Besigye and Uganda’s Unfinished revolution. They will understand the character and nature of Yoweri Museveni, the man who has ruled over their nation for the last 35 years. Secondly, I am speaking about this history to pay tribute to Dr. Kizza Besigye and other Ugandans who led the way and those who paid the ultimate price fighting against General Museveni and his corrupt regime. As I have consistently said, we must never forget the incredible sacrifices made by those who came before us! Third and finally, I am talking about this history to remind the nation that the challenges we have faced ever since I announced plans to run for president in 2021 are not a new phenomenon. They are in fact a pattern of repression and suppression against anyone who has dared to rise up against the regime. That is how Museveni fights- like all cowards. The first attempt of dictators throughout history is normally to bribe and co-opt their opponents. They rely on intimidation and violence to suppress voices dissent against them. If God grants me an opportunity in future, I will give details of how many people the regime sent to me in a space of one week after the Kyadondo elections, to give me part of their stolen billions in order to silence me! It was after I had made it clear that I was never going to be compromised that they changed tactic and came with full force. Aside from compromise and violence, one of the most compelling tools employed by dictators is the law! Right from the apartheid regime in South Africa, to the Mugabe rule, to Gaddafi, Bashir, Hosni Mubarak and others- dictatorships use the law as an instrument for oppression. Ever since we started the People Power Movement, the regime has deployed the law in its full force to fight us. In Arua, a part from charging me with possession of machine guns before a military court (guns which later disappeared in thin air), I was charged with treason, annoying the president, and many other ridiculous charges. They even claimed that we had broken a bullet proof car screen with a stone.
Bobi Wine campaigns in AruaLater on, I was charged with protesting against the social media tax. I am out on police bond in respect to more than 20 other incidents. Sometime last year, Uganda Revenue Authority issued me an embarrassingly high tax demand in respect to transactions I did many years back. You will all recall that last year, I together with other leaders of People Power were sued in the Constitutional Court for operating the People Power Movement! The cases against me personally have been numerous. The regime has deployed people to file a case claiming this very land where our office is in Kamwokya, another case claiming Magere where my house is, and another case claiming Busabala One Love Beach! I have owned all these properties for more than 10 years and no one had ever come up to complain – until I decided to take on Museveni! Any sane person would understand the motivation! Recently, when we officially launched the National Unity Platform political party, some imposters came up claiming that we took over the leadership of the party illegally. As ridiculous as it sounds, the same people who appeared before the press with forged membership cards went on to file a case without the cards they brandished before the press. This time, they claimed that the party previously never issued membership cards! Since this matter is before court, I will not go into its details because that would be sub-judice. But you can just imagine the lack of shame! We have concrete evidence of which state operatives have been facilitating them, at the expense of the tax payer. What gives me hope is that these desperate attempts have failed in the past and they will fail now. Dictators use these tricks to divert opponents, embarrass them and detract them. Every day you spend in court, the regime uses that time to steal more money and entrench itself further! Having said all this, let me now use this opportunity to address something which has for the past days been a subject of public debate. As I have highlighted above, whenever the regime has wanted to deter its opponents, some Ugandans have availed themselves to be used as tools. For Doctor Besigye, it was the Kyakuwas, the Kiziges, the Gilbert Arinaitwes, the Byabakamas etc. For me, you have seen them already and the list is still growing. When I first ran in Kyandondo, you all remember how the regime and its sympathizers did everything to attack my morality. Too bad for them, it did not stick but they have never given up. Now they are seemingly challenging my credentials and desperately trying to cast me as dishonest. To be clear, in a functioning democracy, leaders should be put on the spot and called to question. No leader should be above scrutiny, and in fact our struggle is meant to promote a culture of accountability by leaders at all levels. But from the pattern I have explained above, this is no quest for accountability. This is witch hunt. What Museveni has mastered is the art of deploying tools to help him witch-hunt his opponents . I have lived most my life in the camera. There is nothing I have not spoken about publicly, including the question of my age and my academics. Now, in public interest, let me yet again set the record straight regarding my academics and age! 1. I was born on February 12th 1982 in Nkozi. My brother Julius Walakila, who I follow- same father, same mother, was born on 23rd October 1979 according to all his official records. There is no way I would be born on 12th February, 1980, only four months after the birth of my elder brother. 2. I started school in 1986 at St. Mary Gorreti Nursery School in Kamwokya. 3. For my P.1, I went to City Primary School (now Arya Primary School) in Kamwokya in 1987. 4. For my P.2. I went to Kanoni UMEA (Uganda Muslim Education Association) in 1988. That is where I learnt reciting Islamic prayers that have stayed with me to-date. 5. For my P.3. I went to Kasaka Primary School in 1989 still in Gomba. 6. For my P.4. and P.5. I went to Kanoni Catholic School from 1990 up to 1991. 7. For my P.6 I went to St. Aloysius Bukalagi Primary School in 1992. While I was at Bukalagi in P.6, my father went and requested the Mr Kato, the headmaster of my former school, Kanoni Catholic School to allow me register and sit P.7. exams there. I therefore spent my third term of P6 in P.7. I registered there and sat for PLE in 1992. My father was advised that in order for my age to match with that of other candidates who included my elder brother Julius Walakila who was sitting PLE at Bukalagi the same year, he needed to increase my age by two years. That is when my year of birth was altered from 1982 to 1980. Despite sitting PLE without studying P.7, I passed my exams well. But I would continue with this anomaly in age throughout my education both at S.4, S.6 and university education. Nine years ago, in 2011, my late father, J.W. Ssentamu talked about this story and the video recording is available. Similarly, 14years ago, in 2007, my elder brother Eddy Yawe was interviewed by the New Vision – an extract of which is available. He also spoke of how I skipped P.7 and sat PLE. The same fact is spoken of in previous different interviews by my elder brother Chairman Nyanzi. From as far back as 2008, I have done several interviews in which I spoke of this story. Therefore, it was at the point of getting my first Passport in March the year 2000 that I decided to correct this anomaly in my date of birth to reflect the real which is February 12th 1982. I remember swearing an affidavit to reflect this change, which is what was required at the passport office at the time. I saw some misguided people claiming that I changed my age at the time I was joining Parliament in 2017. No. All my records outside the academic documents since 2000 bear my true year of birth. Regarding the arrangement and spelling error in my names, I swore a Statutory Declaration in 2017 as required by law, and filed it accordingly. It was the basis of my nomination as Kyadondo East Member of Parliament. At that time, I also applied for verification of my UNEB results and they were verified. I hope this clarification brings comfort to all those well intentioned supporters and comrades who might have been worried about these schemes. I have been a law abiding citizen who values and treasures integrity, my shortcomings here and there notwithstanding. If my legal team deems it fit to undertake any other steps to clarify these issues in light of the most recent jurisprudence, they will do so, and I will inform you friends accordingly. For now, we stand confidently right before the law and any other moral code! The detractors as we say, will die in their own movie! 8. Back to my education, when I proceeded to Secondary School, I went to St. Maria Goreti Katende in 1993 for my S.1. first term. 9. For my S.1 second term up to senior three, I was at Brain-trust Academy in Rubaga. That was from 1993 to 1995. 10. For my S.4. I went to Kitante Hill School and that is where I dat for my UCE in 1996. 11. For my S.5. first term, I went to Alliance Advanced Secondary School in Kamwokya in 1997. 12. For my S.5. second term, I went to Lubiri Secondary School in 1997. That was the time I lost my mother. 13. For my S.5. third term, I went to Kololo Senior Secondary School, still in 1997 and stayed there until I completed Senior Six (S.6) in November/ December 1998. 14. I was admitted to Makerere University for a Bachelors Degree of Social Sciences in 1999. I studied for the whole year (majoring in anthropology, political science and economics), but later dropped out of the course on account of lack of tuition. I applied for a Diploma in Music Dance and Drama (MDD), Makerere University because I was aiming at getting a government scholarship and also because I had started picking a lot of interest in music and drama. 15, In the year 2000, I was admitted on government scholarship to study Music, Dance and Drama and I graduated in 2003. The good thing is that for all my school life and for each of the schools I have mentioned, I studied with some people who are now prominent in society and hopefully some of them will one day tell the story. 16. As it is well known, in August 2016, I decided to go back to school- this time to pursue legal studies. I joined the International University of East Africa (IUEA) in Kansanga for my Law degree. A few months later when Cavendish University opened its law school in Kamwokya, I transferred from IUEA because Kamwokya was much nearer to my workplace (firebase) than Kansanga. 17. I also did a short course on Leadership for the 21st Century at Harvard, and I am currently enrolled at the Southern New Hampshire University for further studies. I have had to put both my studies at Cavendish and SNHU on halt on account of the busy schedule and the ongoing persecution. God willing and time permitting, I hope to complete both courses at the right time.
By this time, I am sure the question on everyone’s mind is why I was always moving from one school to another. Well, I have told this story many times but let me repeat here that my life was a real hustle.
My father had more than 30 biological children and other dependants and this put a lot of pressure on his finances. Actually, a part from the fact that my father considered me very brilliant, one of the reasons why he was desperate to see me skip classes was to avoid the cost of school fees for the time skipped!
My mother too, in my formative years was not doing so well and yet she had ten biological children and other dependants to look after all by her self. So I found that I had to move from school to school because of school fees problems. Some well to do Ugandans may not understand this, but I am sure the poor people- the ghetto people understand this kind of life. I am a real product of ghetto life, and I am proud of this history because that is my greatest motivation to want to change the lives of our people because I understand their hustle so well.
Finally, countrymen and women, fighting a dictator is no simple task. You lose friends. You are stabbed in the back. You are persecuted. You are prosecuted. You are slandered. You are maligned. You’re embarrased. You are threatened. You are attacked from every corner and by every tom, dick and harry.
While you are fighting for the oppressed, the dictator uses some of the oppressed people to oppress you.
While you are still dealing with this, the regime brings that. As you conclude one battle, the regime is manufacturing ten more wars. If you are not careful, you can easily faint and give up. But you must persevere. You must keep your focus. You must not lose your head.
You must know that out there are millions of people who look up to you. You must keep going. These are the lessons I have learnt from Dr. Kizza Besigye; from Nelson Mandela; from Malcolm X and from Martin Luther King Jr and I hope that the ghetto people out there are learning lessons from my experience while am still alive.
Dictators have no shame. Their tools too, have no shame. My wife and I have been left in so much wonder seeing some of the people who were very close to us, who we helped so much and those who helped us, turning around and do unbelievable things against us. We sometimes watch in utter shock as some of the people who were previously closest to us say incredible lies about us. But that is life. We have come to learn the kind of mission we took on and I encourage all comrades to brace themselves for more heartbreaks. That is the cost of fighting for freedom, But we shall eventually win.
Now, regarding the Electoral Commission, UNEB and other state institutions, I am aware that several lawyers and private individuals have written asking for information regarding the academic papers of President Museveni, his wife and several other NRM ministers. You have already taken a much longer time to respond to their request than the time you took to release my academic papers! I am challenging you to release them with the same urgency since you claim to be acting within the law and independently.
Ugandans want to be sure that indeed, President Museveni has the qualifications he claims to have, that he was born when he claims to have been born and that he is in fact a Ugandan, this is a debate that has raged on for years.
Ultimately, we SHALL OVERCOME! KYAGULANYI SSEMTAMU ROBERT MEMBER OF PARLIAMENT KYADONDO EAST CONSTITUENCY PRESIDENT- NATIONAL UNITY PLATFORM
FDC candidate Dr. Kizza Besigye has described as laughable a petition seeking to disqualify him from the presidential race over forged academic papers.
By Fred Kayizzi
& Amlan Tumusiime
FDC candidate Dr. Kizza Besigye has described as laughable a petition seeking to disqualify him from the presidential race over forged academic papers.
MP Moses Kizige’s petition says Besigye used someone else’s qualifications for admission to secondary school. Speaking in Hoima yesterday, Besigye accused President Yoweri Museveni of engineering the petition which he said would fail. Besigye, who roared with laughter, said his lawyers would handle the petition the way they have handled other cases. Ignore those reports and vote for me because I will not be removed from the race since I have all my papers from primary school to university, he told a big rally at Hoima Boma ground. Besigye first reacted to the matter during a talk-show on Radio Hoima FM on Saturday night. In the middle of the show, he said, I have just received a call from my supporter in Kampala that they have petitioned against my academic qualifications. This is laughable because I have been a medical doctor for a long time and worked in their government for a long time. These are kicks of a dying horse. They have realised that they have no other option to fail me apart from removing me from the race. They now know things have worsened on their side, he added. Besigye was explaining the huddles he has gone through in the presidential race, including the criminal charges against him. Besigye said soldiers had been deployed to destroy his posters across the country, especially in eastern Uganda. He said he would put up more posters. On Sunday morning, Besigye attended prayers at the Bujumbura Cathedral, the headquarters of Hoima Catholic Diocese. He addressed the congregation briefly, urging them to vote only honest and religious people. Besigye was accompanied by East African Legislative Assembly member Yona Kanyomozi, FDC parliamentary candidate for Buyaga Tuterebuka Bamwenda and other FDC officials. After church, Besigye addressed a rally in Hoima town and again spoke about the petition. He said Museveni had desperately resorted to the petition as the only way to remove him from the race after realising that he (Museveni) was losing all the court cases against him. I finished my Primary Leaving Examination 40 years ago but today somebody claims that somebody else sat for me. That is laughable. You can see how Museveni is like somebody who has fallen in the water and he is desperately trying to find a way of surviving, he said. Besigye said the February 23 polls had already been rigged. He said the NRM was using government organs to canvass support for Museveni. He cited the RDCs and the DISOs. He said the Electoral Commission was biased because it was working on Museveni’s wishes. Besigye, who was on remand in Luzira Prison for about two months, said over 600 suspects arrested by Wembley were languishing there. On Saturday, Besigye addressed rallies in Masindi before moving to Hoima, where he spent the night. Sunday Vision reported that Kizige, the MP for Bugabula county, said Besigye used another person’s marks to join Kitante Senior Secondary School in 1969. Kizige’s petition said Besigye used Warren Kiiza’s results, which is why he adopted the name. He said Warren Kiiza sat PLE in 1968 at Kinyansaano and yet Besigye had relocated to Mbarara Boys. Ends
The High Court sitting at Kampala yesterday acquitted Forum for democratic Change president Col. Kizza Besigye of rape charges. Delivering his judgment, Justice John Bosco Katutsi described the investigations headed by CID chief Elizabeth Kutesa as crude and amateurish and betrays the intention behind the case.
The High Court sitting at Kampala yesterday acquitted Forum for democratic Change president Col. Kizza Besigye of rape charges. Delivering his judgment, Justice John Bosco Katutsi described the investigations headed by CID chief Elizabeth Kutesa as crude and amateurish and betrays the intentions behind the case. Hillary Kiirya, Anne Mugisa, Milton Olupot and Hillary Nsambu were in the court. Below is the judgment in full
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 and moved to the hostel in October 1997. She was spending her weekends at the home of the accused. On one Saturday, a driver went for her to Luzira at the home of the accused. Between 7:30pm and 8:00pm, the accused got home. At about 8:30pm 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 of a sudden the accused started caressing her thighs. As she tried to move away he went on caressing her all 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 forcefully 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 the fate. After satisfying his lust he went to the bathroom and returned to her with a small towel. She was crying. He sat on the bed, gave her the 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 nutshell 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 11:00pm. 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 a 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 (Uganda) 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 Masters degree in applied science majoring in Psychotherapy/counselling. Joanita was his client in 2001. She was counselled 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 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 witness.
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 competition 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 Vs. 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 position whether to consent or to resist. R v. HOWARD (1966) IW.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, must 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. LILYMAN (1898) 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 outcry; 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.319.
Onus of proof: Here I cannot do better than echo the words of VISCOUNT SANKEY L.C in WOOLMINGTON v. THE DIRECTOR OF PROSECUTIONS (1935) AC 462 at page.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 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 entertainedâ€. 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, 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/her evidence given at the trial the court should not merely direct itself that his/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 the accused had threateningly warned her never to reveal it to anyone. 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 (PWI) and Aisha (PW2) was incredibly credible (to use Vice-President Bukenya’s expression). According to the learned Deputy Director of Public Prosecutions, Joanita (PW1) gave a 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 the 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 30 pieces of silver.) The learned Deputy Director of Public Prosecutions 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 comments. He referred to Article 17 of the Constitution of Uganda and sections 95-97 inclusive of the Magistrate 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 DPP submitted, this was mere facilitation, the State having uprooted her from her property, it had moral responsibility for her plight. For his part Mr. (David) 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 to 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 it fit to put the accused in his stand, he bragged. In this judgment, 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 let alone practice. It is to be borne in mind that complainant Joanita Kyakuwa is no ordinary and rustic girl. She was an undergraduate offering a BA in Arts at the time material to this case. It is of note that this BA undergraduate, who claims to have been sexually assaulted, was quite ignorant of the date let alone the month during which she claims to have been sexually assaulted. In her self-recorded Police statement, exhibit Dl, the following is what she stated: I remember very well, it was a Saturday evening around 8:00pm/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 let alone the month on which she experienced a trauma that she claims to have affected her mental stability? On July 5, 2001 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 Dl she states: I 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 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 her decency permitting, inviting the ravisher as it where 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 would 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’s Day, to them every weekend is made to appear to have been Valentine’s Day? I invite female activists to tell us whether that is the behaviour of a girl that has been raped? I need more education in this area! I now turn to the conflict between the statements of the complainant recorded herself and her evidence in court. In her self-recorded statement exhibit D1 she 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 himself 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 himself on me. Here is a girl talking to a fellow girl. What did she mean by has force 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 negligible, they are not admissible evidence of the truth of the facts stated therein. At page 1172 LORD PARKER continued: In the judgment 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 Page 51 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 prosecutor 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: A part 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 CR1 session case no.10 of 1970 where NTABGOBA, Ag. Judge, 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 exa-mining 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. I now turn 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 an unknown place, which she thought was CMI. I take CMI to mean the Chieftaincy 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 DPP and beg to be acquitted of discourtesy if I ignore them. After being humiliated into submission Aisha 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 DPP submitted: “...again to Aisha, to tackle the issue of the assistance and facilitation she a was given ...I 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 DPP, and while I do not go to the full length of imputing fraud on the part of 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 in spite of the oratory of the learned Deputy DPP raises a lot of doubts as to the real intentions of the State in offering that property to Aisha Nakiguli. Can such evidence be free from suspicion? 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 turn 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 language lacking any ambiguity, shows that first information in this case was recorded on June 28, 2001. Prosecution adduced evidence to show that Joanita Kyakuwa the complainant in this case first ever lodged her complaint with the Police on July 4, 2001. This, is well after the first information in this case, was minuted. Re-examined on this wearied anomaly, the record shows the CID iron lady saying the following: Qn. 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. All 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 CID HQTS. Inquiries have been opened surrounding the allegation that Col. Dr. Kizza Besigye, while acting as a guardian to one Kyakuwa Joanita, unlawfully infected her with (HIV/AIDS) when he well knew his status. This unfortunate incident occurred around Kampala. Here is a situation where a certain Col. Dr. Kizza 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 CID had not seen Kyakuwa Joanita), with (HIV) AIDS . It would appear to me in 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 evidence suggesting that either Dr. Besigye or Kyakuwa were HIV positive nor indeed that if they were, they had the same HIV strain! I think the learned Deputy DPP almost had it right when in his submission he said: ...Prosecution concedes there were a number of short comings in the same investigations were done or conducted in this case. I say almost because this is an understatement. The best way the investigations were conducted and carried out is that it wascrude 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 300 years ago. The evidence before 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 him 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.
