The Principal Judge Dr Flavian Zeija nullified a pre-bargain agreement between the Directorate of Public Prosecution-DPP and Ongoriya Moses a security guard attached to Saracen security company.
The High Court in Kampala has ordered the re-trial of a former security guard attached to Quality Supermarket Nalya who in 2019 shot and killed a customer after a misunderstanding.
The Principal Judge Dr Flavian Zeija nullified a pre-bargain agreement between the Directorate of Public Prosecution-DPP and Ongoriya Moses a security guard attached to Saracen security company.
The application for nullifying the agreement was filed by the DPP through Nakigudde Margret, the Assistant Director of Public Prosecutions who accused their employee Wanamama Mics Isaiah of fraudulently entering a pre-bargain agreement with Ongoriya that changed his charge from murder to manslaughter of Ainebyona Arnold who was shot dead at Quality Supermarket in 2019.
The DPP filed for judicial review arguing that Wanamama’s decision to replace the charge of murder with manslaughter occasioned an abuse of prosecutorial powers and ought to be struck out. Ongoriya had been sentenced to six years imprisonment.
In his ruling, Zeija agreed that indeed there is overwhelming evidence that would make Ongoriya defend himself against murder; a much more serious crime than manslaughter which carries a lighter sentence. Wanamama and Ongoriya who were both respondents in the case first raised a preliminary objection arguing that the High Court has no power to review its decision.
However, the DPP opposed this position arguing that it was a public body whose decisions can be reviewed and that the state attorney was acting in his official capacity. The DPP also argued that it would be impossible for her to appeal the sentence yet it’s on the agreement that her office signed that the accused was convicted and sentenced. The judge agreed with this reasoning. “it would be a travesty of justice and against public policy in a case involving the unlawful killing of a human being and alleged fraudulent misrepresentation of facts…for the High Court to sit and fold its hands and let an accused person illegally and fraudulently enter a plea bargain agreement for a handshake sentence and no action is taken when the prosecution cannot appeal or have the proceedings revised. This would be against public policy, abuse of the court process, and outright failure by the court to administer justice and ensure the safety of people and properties. This is not what the framers of our laws intended,” the ruling reads in part.
In 2019, the country was gripped by the murder of Ainebyona following what was a minor misunderstanding in the parking lot of Quality Supermarket. At around 10:00 Aineboyna went to a supermarket at Nalya shopping village-Namugongo in the company of his brothers; Agaba Aaron, and Atuhaire Mugisha Andrew.
The trio who were from the gym bought four big bottles of water which they carried to the car in a trolley. Court records show that after putting the water in the car boot, the trolley rolled off and collided with a stationary vehicle in the parking yard. Ainebyona and his brother Atuhaire went to find out the extent of the damage caused by the trolley and found that there was no damage, dent or scratch on the stationary vehicle.
They picked up the trolley and took it to the entrance of the supermarket, They believed that they had not committed a crime and decided to get into their vehicle and drive off. As they set off, a security guard Awazi Babu approached them and ordered them not to leave. Ainebyona explained to Babu that they had checked the vehicle and no damage had been done to it.
However, Babu insisted that they come out, which led to a scuffle. It was at this time that they were joined by Ongoriya who then went and picked his gun and shot and killed Ainebyona. “The above facts fully support the charge of murder, Any reasonable prosecutor properly directing his/her mind to the law and facts would in the facts as stated in the summary of the case prefer the charge of murder and not manslaughter. The facts on the face of it properly bring out all the ingredients of the offence of murder. Of course, the accused can have a defence which can be heard and evaluated at trial,” Zeija ruled. He added that although he agrees that amendments can be made and prosecutors have prosecutorial discretion, the authority to amend and the prosecutorial discretion must be used judiciously.
“Prosecutorial discretion and amendments must be based on the facts of the case and only intended to foster justice not to curtail it. Since there was no new evidence to amend the existing summary of the case on the court record, I find that it was irrational on the part of the 2nd respondent to amend the charge of murder to manslaughter,” the judge held.
He, therefore, quashed the pre-bargain agreement and ordered the retrial of the case in the high court.
