Case commentaries

DOI10.1177/1365712717745402
Published date01 January 2018
Date01 January 2018
Subject MatterCase commentaries
Case commentaries
Jeremy Gans
University of Melbourne, Australia
Dying declarations—Uganda
I know Kazarwa Henry and Nyakahungura Kenneth. I was in Lyantonde that day then around 11 pm, I got a
call from Kaguta road Police Post where Ntwale and Bayendeza had reported a case. Police asked me to go
because two people were reporting that Kyakabale had been cut. I drove to the Police Post and found there
two policemen. I drove to George’s place found Nalongo his Wife Nakanjako and Kyakabale in critical
condition. By this time Ntwale and Bayendeza had gone to town to look for me. Kyakabale told me that
Kazarwa, Tobias and Kenneth are the ones who had cut him. That Kazarwa came from the front and Tobias
cut him from behind with a panga.
When I tried to put him in a vehicle I found five cuts; three on the arm; one on the shoulder and another by the
ear ...The reason for cutting him is because there has been a prolonged land wrangle between George and
Ronald Ruta whereby one time Kazarwa fought with Kyakabale ...I got Dr. Charles Mugenyi who tried to
give first aid because he was bleeding severely and died at 6.30 am. Thereafter I rushed to Lyantonde Police
Station and reported. When we reached the scene we found all the workers gathered in front of Kazarwa’s
house. When he saw a pick-up with Police he ran away, they gave chase but could not get him. They arrested
Kazarwa’s Wife that day.
The above statement formed part of the prosecution case in a 2011 trial concerning the murder of
Kwarkabale Willy in Kyabazade village, near Lyantonde in south central Uganda on 14 February 2009.
It contains three components of the prosecution’s argument that Kazarwa Henry was one of the killers:
his motive (the fight between his and the deceased’s employer over land), his fleeing the police (some-
thing Kazarwa said was due to earlier police harassment, with his later absence from Kyabazade due to
the death of his child) and Kwarkabale’s dying declaration, identifying Kazarwa amongst his three
killers (another of whom plead guilty early in the trial.) The High Court in Mbarra convicted Kazarwa
of murder and sentenced him to life imprisonment. However, a majority of the Supreme Court of Uganda
has now quashed Kazarwa’s conviction and ordered that he ‘should be released and set free unless if he is
being held on other lawful charges against him’.
In Kazarwa Henry vUganda [2017] UGSC 22, the majority observed that the main evidence of the
witnesses initially at the crime scene, Basome John, Ntwale and Nakanjako Jane, was ‘full of incon-
sistencies and contradictions’, specifically: that while the married couple (Ntwale and Nakanjako)
reported that Kwarkabale had identified three attackers (including Kazarwa), Basome John said that
he had only identified one (the man who later plead guilty.) In addition, while Ntwale said that he had
Corresponding author:
Jeremy Gans, Melbourne Law School, University of Melbourne, 185 Pelham Street, Carlton, Melbourne, Victoria 3052, Australia.
E-mail: jeremy.gans@unimelb.edu.au
The International Journalof
Evidence & Proof
2018, Vol. 22(1) 82–84
ªThe Author(s) 2017
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DOI: 10.1177/1365712717745402
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