On Monday, High Court Judge Margaret Mutonyi acquitted Abubaker Kalungi of the double murders of former Buyende district police boss Assistant Superintendent of Police Muhammad Kirumira and his friend Resty Nalinya Mbabazi. Kalungi was arrested in September 2018 from Buliisa district and, together with Hamza Mwebe, charged with the murders which took place on 8th September 2018 in Bulenga, Wakiso district.
The prosecution alleged that Kalungi was hired to trail Kirumira and inform Mwebe and Abdu Kateregga who eventually killed Kirumira and Nalinya. In her judgment, the Judge ruled that the prosecution had proven the first three ingredients of murder: that there was death, it was unlawful, and that there was malice aforethought. However, the prosecution failed to prove the fourth ingredient of participation either directly or by facilitation of the crime.
In their attempt to prove participation, the prosecution presented evidence such as the Charge and Caution Statement, call data records of the suspects, and an eyewitness. But the prosecution’s attempts were futile, as the Judge poked many holes in the “unsystematic” investigations and lacked evidence upon which the case was prosecuted. The Charge and Caution Statement is a statement executed by Assistant Inspector of Police Stephen Walimbwa on 29th September 2018 in which Kalungi was said to have confessed to participating in the murders.
The accused, however, disowned the statement saying that while in the custody of the Chieftaincy of Military Intelligence-CMI in Mbuya, he had been tortured and made to sign or thumbprint several documents whose content he had no knowledge of. His lawyer, Zefania Zimbe, also challenged the statement saying that it did not follow the procedural guidelines required for a confession statement.
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The guidelines provide that the statement should be recorded in a language the prisoner chooses to speak, it should be read back to them to incorporate any corrections, the prisoner should verify the correctness of the statement by signing or thumbprinting on every sheet, and lastly that the statement should be translated into English as well. The Judge found that the statement from pages two to four doesn’t say a thing about the charge against Kalungi, and from pages five to seven, it talks about how the suspect was asked by Kateregga to trail Kirumira.
But even then, there is no mention of why Kateregga asked Kalungi to do that. The statement was also recorded in English yet Detective AIP Walimbwa told Court that the accused person told him that he understands Luganda. Also, that in the statement, only Kirumira is mentioned and not Nalinya “as if she was insignificant yet two precious lives were lost”. So the statement remained wanting as to how it would refer to only one victim and not the other.
The judge also observed that there was no evidence that Walimbwa explained the statement to Kalungi in a language he understands yet he “boasted of over 30 years experience as a police detective. Walimbwa only added a statement at the bottom that he had read the statement back to Kalungi and while Walimbwa signed on this part of the statement, the accused didn’t. Even his competence as an interpreter was questioned.
He had told the court that he knew Luganda because he studied it in Primary one and two and that he had worked in the Buganda region for some good years. The judge described this as the most ridiculous part of Wolimbwa’s evidence, saying it is incomprehensible for anyone to claim to be an expert in a language after learning it in primary two. “For anyone to be an interpreter in a language, one must be fluent in speaking the language as well as writing it” she opined. The Judge says that this being a case involving the murder of Walimbwa’s colleague, the court expected the police officer to do better.
“Court believes a new police recruit could have done better because Wolimbwa recorded the statement like he was recording for himself not to be used as evidence before the court,” said the judge. The judge also observed that the accused had been tortured at the time of executing the statement. The statement was recorded on September 29th, 2018, and a doctor’s examination of Kalungi, four days later on Oct 2nd, 2018 found that the suspect had visible healing wounds on his forehead and back. It was unbelievable to the judge that Wolimbwa could not have seen the wounds at the time of administrating the charge and caution statement as he claims that the suspect was fine. Under the law, evidence extracted through torture is inadmissible before the court.
The Eye Witness
The prosecution also presented Abdu Kigongo, who said that he was walking from Bulenga A towards Musoke Road when he saw Kirumira’s car and decided to walk to it. He explained that after about three minutes of a conversation, Nalinya, a daughter of the area defense secretary came and sat in the co-driver’s seat, which prompted him to give them some privacy.
Later, 10 meters away from the car, two motorcycles passed by each carrying two people. One motorcycle stopped and one of the occupants shot the car tires while the other shot at the occupants. The occupants of the other motorcycle parked slightly away started firing in the air. According to the judgment, there were inconsistencies in the witness statement and the Charge and Caution statement. First, while the statement talked of one motorcycle and two people, the eyewitness talked of two motorcycles each with two people. The eyewitness also described the motorcycles as Sports type while the statement talked of TVS Kiwagi.
The Judge ruled that a Charge and Caution Statement, which is treated as a confession must be unequivocal. That it should not be open to more than one interpretation or leave any doubts as to the guilt of the accused. “It must clearly bring out the intention and wrongdoing of the accused that constitutes part of the crime by his own admission” she ruled.
The eye witness also did not prove that Kalungi participated in the murders since he said that it was too dark for him to recognize anyone. But his conduct too at the time of the murders raised questions with the Judge wondering why the prosecution did not take interest in investigating him. He had told the court that he “watched the horrendous ferocious attack” on Kirumira and Nalinya and remained standing and watching at the place until close to midnight when President Museveni visited the scene and he, as an eye witness narrated to the president what he had seen.
“The only eye witness’s conduct was like of one watching a horror movie where one is very sure it is just but a movie” observed the judge asking what was the basis of the eye witness’ confidence that the assassins would not shoot at him and what interest did he have in watching the event and waiting until the president came.
“In my humble observation and opinion, PW6 Kigongo Abdu should have been investigated over his rare courage and confidence that the assassins who acted in the most gruesome and brutal manner could not harm him…” the judge observed adding that the investigations were on systematic and properly done to discover and examine facts.
The Killing of Abdu Kateregga, the Prime Suspect The Judge also raised questions on the identity of Abdu Kateregga and his death. During the entire trial, the prosecution did not identify Kateregga, his existence, and death, and if indeed he instructed Kalungi to trail Kirumira. The Judge further observed that if Kateregga indeed existed and was “put out of action that amounts to the extra-judicial killing, which is not allowed in law. She questioned why Kateregga would kill Kirumira and Nalinya, where he got the guns used, and why he was put out of action when it was necessary to establish the motive of the gruesome murder.
“Did they find any weapons with him? If that is the reason why he was put out of action where is the weapon that was recovered to trace the supplier of the weapon?” Are other questions the judge posed adding that when citizens are gruesomely murdered using weapons that are a preserve of security forces, it is important that investigations are taken seriously to the extent of establishing the kind of weapon that was used and possible source of supply.
“it is not known whether the investigators in this case ever thought of tracing the source of the murder weapon. If at all they were convinced Kateregga had a hand in the murder, they should have not killed him but arrested him to obtain his statement and possible retrieval of the murder weapons” noted the Judge.
She condemned the killing of Kateregga saying that the arresting officer is allowed to use excessive force only where the suspect is dangerous or armed. “What was it that those who put him out of action were fearing or wanted to conceal?” questioned the Judge.
The Call Records and the ADF Question
Another piece of evidence presented by the prosecution was call detail records of communication between numbers said to belong to Kalungi and Kateregga and others. CMI Technical forensic investigator Frank Nyakairu prepared the document titled “Joint Technical Communication Chart for ADF operatives”. But the judge found that this “suspicion” that the assassins were ADF rebels according to Nyakairu was the beginning of mismanagement of the criminal investigations.
Using the call logs, the prosecution alleged that Kalungi and Kateregga were part of the rebel group and had been communicating at the critical moment of the murder. But their argument fell short of evidence to prove that the numbers indeed belonged to the accused persons. They also failed to prove that their communication regarded the murder.
The judge also noted that for call records to be useful, their ownership and usage must be proven, something that wasn’t. The document also had several other numbers some of which, said owners had already been arrested but the prosecution didn’t find it wise to bring those people to implicate “their colleagues” and confirm that the duo murders were executed by ADF operatives.
Furthermore, the judge questioned why the investigators didn’t widen their search to include calls made to other lines (said to belong to other ADF rebels) during the same critical time of the murder. How about Kirumira and Nalinya’s call records? More questions popped up.
“In this case, call data should have included the number of the deceased Resty Nalinya to establish how often for example she communicated with the deceased Kirumira. Was she the one he was communicating with before she joined him? Was he talking to another person? What about the call data for the late Kirumira? What did it disclose?” the Judge raised more questions
She concluded that the motive of the murder should have been at the center of the investigations, examining who was to benefit from the murders, who was Resty to Kirumira, whether they were acquaintances of strangers, and whether was Resty a mere unfortunate victim.
“This court finds that prosecution evidence left many questions without answers. Thorough investigations should have unraveled the mystery behind the gruesome murder. This is a case that had no direct evidence of participation and as such investigation should have been wider and thorough to show that the inculpatory facts are inconsistent with the innocence of the accused” ruled the Judge.
She, therefore, agreed with the earlier observation of two lady court assessors that the accused person should be freed. She hence acquitted Abubakar Kalungi and he was set free by the prison services.
