Defense attorneys want the chief prosecutor to become a witness

At approximately 10:20 a.m., there was a bang on the courtroom door, signaling the arrival of Presiding Judge Isaac Muwata, who was to begin the day’s proceedings, which included the reading of a ruling by which the indictment was amended to include a further charge against four of Ms Katanga’s co-defendants.

Attorney-at-law Peter Kabatsi: Mr. Minister, to be clear, we, the defense side, had no contact with the prosecutor’s office regarding the established facts and this should not be attributed to us.

Judge: Let’s move on. I present to you Mutonyi Sharp, Simon Otongo and Tabu Consulate as your assessors. A1 (Molly Katanga and the main suspect), do you know them?

Judge: Would you mind if I were your evaluator?

A2 (Mrs. Patricia Kakwanza): NO

A3 (Martha Nkwanzi Katanga): NO

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

Prosecutor Samali Wakooli: Sir, we are ready to continue.

Judge: How many witnesses do you have?

Judge: Well, let’s go, let’s take the first one, the second one can wait outside.

Legal Counsel Kabatsi: My Lord, before the first prosecution witness takes the oath, we have an objection to make. One of the prosecution in this trial is a potential witness. Allow my learned friend (Bruce Musinguzi) to elaborate on this.

Legal Counsel Musinguzi: Our objection is based on provisions 9 and 10, where one of the prosecutors is a potential witness. Sir, the prosecutor we are talking about is Ms. Samali Wakooli, who also prepared and signed the indictment on January 22, 2024. Sir, our objection is based on provisions 9 of the Rules of Professional Conduct for Advocates. Sir, in order not to burden the court, we have prepared a package of authorizations, which we will share with you and the prosecutor’s office.

Sir, pursuant to Article 9 of the Regulation on page 2 of the indictment, on January 22, 2024, the indictment, which Ms. Samali prepared and signed, was read in court and, my Lord, this motion is based on paragraphs 32 and 34 of that summary of the facts contained in the indictment.

My Lord, paragraph 32 stated that the SOCO (scene of crime officer) visited the scene and took samples for forensic analysis. It goes on to say that DNA testing of the gun showed that A1 DNA (Molly Katanga’s DNA) was most dominant on the trigger. The DNA analysis report will be based on that at trial.

Paragraph 34 states that the residence of the deceased (Henry Katanga) and A1 (Molly Katanga) has CCTV installation in and around the premises but during a police inspection of the CCTV system it was discovered that key cameras had been tampered with. The CCTV report will be used at trial.

Lord God, on May 3, 2024, we were served with the DNA report, the DNA report on page 36 indicates that it was prepared on April 30, 2024…

Prosecutor Muwaganya: Sir, I apologize for interrupting our honorable brother. We think we know where he is going, and we, sir, feel that our honorable brother is acting irregularly because he is disclosing evidence that has not yet been presented to this court. He is omitting evidence and technical reports before they have been formally presented. … it will prejudice this court, it is improper …, so we object to the casual manner in which our honorable brother is approaching this matter.

Judge: You (Musinguzi) should not be the prosecutor in this case.

Counsellor Musinguzi: Yes, but I was just giving the background, my Lord, that the evidence that they gave us was this DNA report. My Lord, I don’t know if they’re saying that it’s not the one that they gave us, we would probably understand the basis of the argument.

But in order for us to make our point, my Lord, we must refer to this DNA report, and I will not discuss its substance. I have only referred to the dates.

Prosecutor Muwaganya: My Lord, our brother does not omit evidence in court under the pretext of providing background. My Lord, this is a criminal proceeding in which evidence is not haphazardly given to the court. If he wants to rely on technical evidence, he can only do so through the proper procedure of giving it to competent persons.

Legal Counsel Musinguzi: … Sir, the reason why we want Samali Wakooli to appear as a witness is for four reasons. This was an investigation by the prosecution and at the time the prosecution signed and prepared the indictment on January 22, 2024, Sir, the DNA report, which is the basis for Section 32, had not yet been prepared.

So when Samali prepared the indictment, the DNA report did not exist yet. However, her summary of the case makes extensive reference to the DNA report. Therefore, my Lord, we will need Samali Wakooli to come and address us based on paragraph 32 of the summary of the indictment. My Lord, we submit that there is a strong possibility that there may have been prosecutorial bias that led to prosecutorial error in this case and therefore we would need Samali Wakooli as a witness to come and explain where she got the facts from 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 matter. We have discussed this with her informally, so she was aware that we would raise it.

Prosecutor Muwaganya: Sir, we have heard the motions of the lawyer. In his motion, he highlights several authorities that we wish to approach the court about. But so that we can prepare properly, we request an hour’s recess. Sir, my colleagues say that they suggested this motion to us, but we did not know exactly what it was about.

Judge: Let’s meet again at 1:00 PM.

The court hearing will resume shortly after 1:00 p.m. with Attorney General Jonathan Muwaganya expected to respond to the application.

Prosecutor Muwaganya: Mr. Judge, this is a motion to exclude the prosecutor on behalf of Ms. Samala Wakooli, as the attorney put it.

According to Article 120 paragraph (3), prosecutors shall perform their duties within the framework of the authorisation granted to them by the prosecutor.

My Lord, one of the roles of the DPP is to commence criminal proceedings against any person in a court of competent jurisdiction. In the case of offences that are triable in the High Court, the DPP does this by means of a process of injunction under section 168 of the Trial and Indictment Act. The DPP is required to file an indictment and a summary of the case signed by him or by an officer authorised by him for that purpose, acting in accordance with general or special instructions.

It is not evidence that can be relied upon, which is why Section 168 MCA (Magistrates Court Act) allows the prosecutor to participate in its preparation. Secondly, a summary of the case is not evidence, so the prosecution is required to call and lead witnesses to prove its contents. It is required that the summary contain such detail as is necessary to give reasonable information about the nature of the offence with which the accused is charged. The law speaks of information, not evidence.

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

Our learned brother has quoted Section 9 of the Advocates Act. This Act governs the relationship between clients and advocates. Even the definition of an advocate in this Act refers to a person who has joined the Act. State Attorneys are not enrolled as advocates. They are not specifically covered by the Advocates Acts, we are not required to enroll before we start practicing. Sir, the attorneys are constitutional agents of the government. So it is clear that we are not subject to the law, yes, the rules but not the law.

Under section 120(6), the functions entrusted to the DPP require that the DPP shall not be subject to the direction or control of any person or body, including the Legal Council to which our learned brothers are subject. Regulation 9 therefore does not apply to the DPP or her agents, one of whom is Ms. Samali Wakooli….

Our learned brother also argued that this was a prosecution-led investigation. He does so without any evidence and with all due respect, his conclusions are simply from the bar, because there is no rule that every case handled by the DPP is prosecuted or directed by the prosecution.

My Lord, our learned Brother, has taken issue with the dates given in the report as compared with those given in the summary – inquests are conducted on a summary basis and there is no law which prevents the prosecution from relying on preliminary reports, provided that the final reports on which reliance may be placed are made public before the trial.

It cannot therefore be said that a prosecutor who participated in the preparation of the summary may be called as a witness to clarify the dates, related facts, etc. contained in the summary.

Anyway, my lord, our brothers kept mentioning that Ms. Samali would be required as a witness, it was not clear to us, witness for whom, we certainly do not need her because the prosecution and defense have no right to call anyone, whenever and however they want. Their right to decide who should be a witness for the defense is in section 75 of the TIA because my lord, that section only gives the defense the right to have witnesses they named in the District Court during the examination.

There is no evidence, even the most remote, from our colleagues of the mention of Mrs. Samala as a defense witness. I do not know where our good, learned brother got the idea that he simply wishes and calls a witness….

In our circumstances there is no attorney-client relationship with any of the accused persons, so this authorisation does not apply. Our considered conclusion is that this application is made in bad faith, is a waste of the court’s time calculated to delay the trial, and has no basis in law. We urge your Lordship to dismiss it.

Judge: The 9 July ruling and the case of A1 (Molly Katanga) were remitted for further consideration.