High Court surrenders Sub Judice Rule to Public: What a Paradox! OPINION

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By Gyagenda Semakula Zikusooka

While the public move cautiously on the streets of Kampala following yesterday’s twin bomb blasts at CPS and Parliament Avenue, I have found this moment as opportune for me to respond to Frank Gashumba’s recent media outbursts about a case in High Court in Mukono involving a one Dr. Matthew Kirabo.

I am convinced in absurdity that the subjudice rule has been strangled by its own curators and guarantors. The numerous media stories that are punctuated with commercial undertones to their emotions, coming up at a time when the bail debate is thick in the air, both on social and traditional media spaces, is what has intrigued and compelled my written opinion on a case that has potential to shape our jurisprudence or indict the country’s defaced criminal justice system that is struggling to regain public trust.

The competence of a country’s criminal justice system worth its name solely depends on the trust of the people it serves. This should be mirrored in the ways that the police and other law enforcement agencies investigate crime, interview suspects, witnesses and victims, and collect evidences that are crucial to build and maintain that trust.

My opinion is in utter cognizance of the subjudice rule which the trial judge in the case of Uganda vs. Matthew Kirabo seems to have closed an eye to and let to be discussed and debated in the public. It is rather a shock than a surprise that court has condoned the media to discuss a case before it. Strange indeed! The Luganda dictum, “nanyini kiggwa yakiwebuula” is my best description of this court. The common law principle of presumption of innocence has been abrogated.

The only media version to this story as told by Frank Gashumba, the self-appointed spokesperson of the late Desire Mirembe family is what goaded the investigative journalist in me. I have been compelled to revisit my old scripts about this case.

I am at it again. I interrogated a similar case eight years ago. Interestingly, the facts and the trajectory of prosecution are a copy and paste. In January 2012, I embarked on a 452 day-investigative drive, in which I unearthed the rot and filth in our criminal justice system and secured the release of Patrick Zizinga Lwanga, a death row convict in Luzira Upper Prison, who was maliciously accused, prosecuted and eventually convicted to suffer death by hanging by High Court Judge, Caroline A. Okello in December 2004. The Court of Appeal upheld his sentence and conviction in 2007. He spent a whopping 13 years in jail as a condemned death row inmate until Friday, April 5, 2013 when he was unconditionally acquitted and released. He lived a free life for 8 years until recently in June this year when he succumbed to the delta variant of COVID-19. I am happy and feel fulfilled that his free soul rests in liberty at his ancestral home in Jeza on Mityana road.

But what is in this 2015 case that is all of a sudden getting this attention in most sensationalist street dailies and some social media blogs? Matthew Kirabo is all of a sudden the in-thing! What has all of a sudden been discovered about him or the case itself? What strange hidden evidences have been unearthed? Who, in the first place is he? What does he represent? What was known about him before this incident? These are all very intriguing questions.

It is unfortunate that the young, beautiful and energetic Desire Mirembe, once full of life, died in cold blood and nothing about her can be restored. The melodrama is who really killed her. Was she killed by her boyfriend Matthew as the state alleges? Or, is there something that we need to interest ourselves with in this murder case? How I wish Desire’s spirit gets restless and pursues her killers for justice? How I wish!

But what is the other side to this whole uproar? Does Matthew Kirabo as an accused person have a right to tell the story, especially after the other side of the story being told on arousing emotions and public sympathy? And, yes, from an already emotional public, could Matthew who is already presumed as guilty as charged and convicted by the court on social media submit to the contrary? Would his side of the story be believed by the same social media ‘judges’?

Here is my investigation

The case before court and I am insisting, the case before court is of a murder that happened in 2015. Desire Mirembe, a 19 year-old student of Language Therapy at Makerere University was murdered in cold blood on the night of July 11, 2015. Her body was dumped in sugarcane plantations in Kawolo in Lugazi, Buikwe. Court records show a 52 year-old Mulayi Ismail, a businessman and also LCI Chairperson of Kibubu zone (at the time) in Kawolo who testified and said; he saw skid marks showing signs of struggling and when he approached, he saw a shoe but could not recognize the lifeless body. It is also said that the first people to see Desire’s corpse were two little boys who alerted the chairman and the villagers.

In his testimony, he narrates that there were many footmarks at the scene of crime insinuating that the murder was orchestrated by many people. This disputes the story of “high court judge” Gashumba in his “Social Media Courtroom” who insists that the accused, Matthew Kirabo (who according to him is already a convict) led the Police to the scene of crime where he allegedly dumped Desire’s body.

Matthew was brought to the scene of crime on the 29th of July, 2015 (over two weeks later) and several days after detention.

Prosecution also adduced evidence of a video confession by Matthew. The ostensibly emotional public, on this evidence rationally ask why court did not convict Matthew in the first place. Did he confess? Yes. Then why was he given bail? What more to this confession did the prosecution want? The video confession which is a preserve of court is another interesting piece of drama. Matthew is seen in this scripted video on gunpoint by commandos from Nalufenya and another officer from Lugazi Police Station holding him by the trousers, reluctantly confessing how he killed his then fiancée Desire Mirembe (RIP).

Part of his confession in the video is that he used a surgical blade to cut Desire’s throat. During the most recent hearing, the Senior Medical Officer at Kawolo Hospital, Julius Kizito Nsangi who carried out the autopsy, in his professional conclusion said “the most likely weapon used was either a knife or a machete…” and gave professional reasons why this could be so. When cross examined on whether it was a surgical blade as the accused allegedly ‘confessed’, he said, “NO” because surgical blades make clean cuts but the cuts on Desire’s throat had irregular borders and he knocked out the surgical blade theory. There are court proceedings to back this up. Interestingly, Gashumba took to social media and changed the narrative by saying the doctor testified that “it was only someone with medical background who could kill in that manner” and that is utterly false. He was only tickling people’s emotions.

The confession, to any sober mind doesn’t add up in this whole movie (good for series). The accused is alleged to have murdered Desire at about 1:00am in the night and drove from Kawolo back to Kampala in just 20 minutes. The court proceedings reveal that the Police Officer who obtained the phone printouts found that Matthew never left Kampala on that fateful night and even his hostel guard, Naturinda Darius confirmed that, at that same time Matthew was in Kampala. When asked about late Desire’s missing phone, he was told to say he took it and dumped it at the landfill (Kampala waste disposal site) in Kiteezi-Namere but all the available phone printouts don’t reveal this.

Matthew’s confession was extracted by torture and ill-treatment. The rule of non-admission of evidence in any criminal proceedings obtained by torture or ill-treatment also known as the “exclusionary rule” and found in Article 15 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is put to an important litmus test in this case, short of which, we make a return to the infamous Nalufenya confessions as admissible evidences.

Matthew and Desire were in a relationship and when Desire went missing, Matthew was definitely the primary suspect. On the 15th July 2015, he was cordially summoned to report to the Central Police Station in Kampala without ever being arrested as a fleeing suspect. After his voluntary appearance at CPS, he was detained for ten days before checking him out at 11:30pm on the 23rd of July. He was driven that night to the dreaded Nalufenya where he was booked in at about 1:00am on the morning of 24th July from whence he was battered till dawn.

In just six days at Nalufenya, he lost a tooth extracted from him using a pair of pliers, pierced his right eardrum and permanently damaged it and lots of other horrendous inhuman acts including pressing him hard to confess on video as he did. Dr. Andama at the Jinja Main Prison examined him on 4th August 2015 and made notes of all the physical injuries meted on him while in detention at Nalufenya. The lock-up register book at this torture facility is evidence that he was kept at this torture chamber at that time.

It was after all the torture that he was taken to Lugazi as shown in the lockup register under difficult circumstances to make the confession from the script obtained while at Nalufenya in Jinja at the scene of crime. A police officer who took the charge and caution statement from him on the 30th of July 2015 coerced him to acknowledge and sign against it, a thing Matthew refused to do because it didn’t bear any iota of truth. The officer then used the plain statement obtained in Nalufenya and pasted the same on the charge and caution statement but Matthew still declined signing it, invalidating his forced recorded video confession.

The other very important issue in this case was the DNA evidence in such a bloody murder case. All the evidences listed for the Specialist’s examination at the Government Analytical Laboratory in Wandegeya did not show correlation and any matches to the accused. This is what explains the torture extract of the said confession.

The accused was later remanded in Jinja Main Prison from July 31st 2015 to December 21st 2016 when High Court Judge Eva Luswata granted him bail. His release on bail was aided after he was cause-listed on a session that begun on the 14th of November 2016 but because the prosecution was still fidgeting with their pieces of evidence, they seemingly played a delaying tactic by changing the jurisdiction of the case from Jinja to Mukono in order to subject him to a longer remand period.

Nonetheless, the bailed Matthew religiously complied with his bail terms, appearing every single month from January 2017 till October 2021. His counsel made all efforts by writing to the Directorate of Public Prosecutions every year since 2017 to move court to try the case but the prosecution seemed not ready. Remember, there is a “video confession” that should be conclusive evidence against the accused.

While on bail, Matthew went on to complete his Bachelors in Medicine and Surgery at Makerere University where he completed in May 2019 and graduated on 14th January 2020. He then worked at Mityana Hospital from October 2019 till September 2021 where he practiced and saved lives. In August 2021, Matthew was granted a Certificate of Good Conduct (ENQ No. N9294/8/2021) by the Directorate of Interpol and International Relations and a Police Clearance Certificate Ref No. DFS/CI/32225/00412 by the Directorate of Forensic Service, Criminal Identification. Could he have hoodwinked these very sophisticated intelligence organs to absolve him?

The latest we now hear is that Matthew has since disappeared in thin air. How did we miss the opportunity of trying him with all this available glaring video evidence and if found guilty, convict and sentence him for all the time he availed himself? What an opportunity missed!

This is needless to say that Matthew who has been “convicted” by the public court has made several efforts since December 2016 to reach out to the family of the deceased to commiserate with them and offer his support and willingness to cooperate and establish the real killers of their beloved family member. They did not give him this chance.

Remember, Matthew, as a medical officer and practitioner has been doing tremendously well especially in the accident and emergency unit at Mulago Hospital, saving lives of the victims of the 18th and 19th November riots of last year. He was also one of our frontline workers when COVID-19 set in. These are some of the valuable feats that we’ve benefitted from him. However, these should not be construed as reasons to vindicate him of any crimes committed. He should be tried justly and fairly and if found guilty, punished.

Finally, I am not belaboring to just prove how innocent Matthew is. I am painstakingly indicting the court and the criminal justice system, and the presiding judicial officer in this matter to save the subjudice rule, get the case out of the public domain and administer justice. These banter discussions of a case before court are a sheer regression to our country’s rule of law and constitutional justice.

Mr. Justice, please repossess your case and do justice to persons and to our criminal justice system.

Remember Lord Hewart’s dictum, “It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.”

Again, let justice be done to both Matthew Kirabo and the late Desire Mirembe. They both need it.

The author is a PR Practitioner/Investigative Journalist

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