Katanga courtroom tension: Defense rejects prosecution’s forensic report

The high-profile murder case of Uganda vs. Molly Katanga and four others resumed on November 5, 2024, follow- ing a two-week recess, with expectations that the prosecution would present its 10th witness.

This witness was anticipated to be a potential turning point for the prosecution, which had already introduced nine witnesses in efforts to implicate Molly Katanga in the death of her husband. However, Katanga’s defense team has consistently highlighted perceived flaws in the testimonies thus far, including accusations of dishonesty in the recent testimony of witness Naome Nyangweso, which has raised doubts about the credibility of the prosecution’s case.

On Tuesday, with a full courtroom in attendance, the anticipated witness did not appear, leading presiding Judge Isaac Muwata to adjourn proceedings early. Prosecution attorney Jonathan Muwaganya explained that the witness could not attend due to underestimating travel time from an upcountry location to Kampala.

“The witness spent the weekend upcountry and underestimated the entry into Kampala,” Muwaganya stated, adding that there were additional logistical challenges they wished not to detail, and requested an adjournment until the following day.

The prosecution faced further delays as, even after the witness arrived in Kampala, the individual responsible for accessing the exhibit storage was unavailable, prompting a second adjournment to Wednesday. On Wednesday, the prosecution introduced its 10th witness, Enock Kanene, a certified digital forensic examiner with the Uganda Police Force.

Kanene testified that he was assigned to analyze electronic data found on the accused’s mobile devices and those recovered from the crime scene following the death of Henry Katanga, who suffered a fatal gunshot wound. He also examined CCTV footage, and a network video recorder located at the Katanga residence.

Kanene informed the court that he received these exhibits, accompanied by Police Form 17A, from the Jinja Road police station for specific dates (November 3, 6, and 9, 2023), along with two court orders dated November 10 and November 22, 2023. His assignment included extracting data and assessing whether any relevant information, such as messages, call logs, or activity on social media platforms, could be linked to the alleged murder by shooting.

“I was requested to image and extract various communications made between all the exhibits submitted,” Kanene stated.

Upon completing his analysis, Kanene prepared a report, dated April 30, 2024, detailing his findings and providing an expert opinion. However, the report’s admissibility became a contentious issue in court. Defense counsel Elison Karuhanga argued that the report had been conducted unlawfully, sparking debate between the defense and prosecution teams.

Karuhanga objected to prosecutor Jonathan Muwaganya’s attempt to display the report’s findings on courtroom screens. Karuhanga argued that the evidence forming the report was obtained unlawfully, violating constitutional and procedural guidelines. He based his objection on Section 31 of the Computer Misuse Act, which requires a magistrate to issue a search warrant authorizing police to enter and search premises when reasonable grounds suggest an offense has been or is about to be committed.

In this case, Karuhanga contended, no search warrant was ever issued. Karuhanga further noted that the forensic examiner, Enock Kanene, only identified two documents authorizing his analysis: Police Form 17A and two court orders permitting data extraction from the devices.

“There is no search warrant which was used to obtain the exhibits that were used to make the report,” Karuhanga argued.

He pointed out that even these court orders were dated after the police had already seized the devices, which he argued was improper.

“Every phone and computer system obtained from the Katanga residence and presented to his laboratory was collected between November 3 and 9, 2023, while the court orders were issued on November 10 and November 22,” he stated.

Karuhanga emphasized that court orders do not equate to search warrants, and receiving them post-seizure was legally insufficient. “My lord, Section 31, subsection 3 of the Computer Misuse Act specifies that a computer system may be seized, or samples taken, only under search warrants. We cannot allow evidence when it is unclear to us how these phones were recovered,” he argued, insisting that evidence gathered without the proper warrant should be excluded.

He asserted that because the devices were taken without consent from the accused, and without an adequate warrant, any findings from them were constitutionally flawed. Karuhanga also criticized the prosecution for failing to disclose key evidence to the defense. Despite repeated requests, he claimed, the prosecution did not provide full access to the original CCTV footage and raw data extracted from the accused’s phones.

He argued that withholding this material was both unconstitutional and prejudicial, remarking, “The prosecution cannot now rely on image reports or CCTV recordings that they failed to give us.”

Citing the Evidence Act, Karuhanga asserted that when a party refuses to produce requested documents, they cannot later use those documents as evidence without the other party’s consent or a court order. “It is our submission that the consent of the other party or the order of the court has not even been sought. The prosecution has just continued as if we all have the CCTV recordings and phone recordings,” he stated.

Karuhanga condemned the prosecution’s actions as unconstitutional and unfair, arguing that selective disclosure of evidence, such as only a brief segment of a 48-hour CCTV recording, compromised the defense’s right to a fair hearing.

“We must be accorded all the opportunities and means so that the prosecution does not gain an undeserved and unfair advantage over the accused,” he stated.

He concluded by asserting that the provisions in the Computer Misuse Act and Evidence Act are mandatory, not optional. Because the prosecution had not adhered to these guidelines, Karuhanga argued, the report was illegal, and the witness should be dismissed.

“We pray that this witness be discharged and goes with the report he was ready to tell us about, and the prosecution calls their next witness,” he concluded.

THURSDAY

On Thursday, defense counsel Macdosman Kabega raised further objections regarding the admissibility of the prosecution’s 10th forensic report, citing additional procedural violations during its preparation. Kabega stated that he had informed the prosecution of these concerns before the court session, a claim disputed by Prosecutor Samali Wakooli, who asserted that no prior notice of additional objections had been provided. Nevertheless, the presiding judge allowed the defense to present the additional points.

Kabega informed the court that the forensic examiner had based his analysis on two court orders issued by the Makindye Chief Magistrate’s court—one dated November 10, 2023, and the other dated November 22, 2023. Kabega argued that the first procedural flaw related to a letter dated November 2, 2023, under reference CID 13/1016:137/2023.

This letter purportedly forwarded a court order to the director of Forensic Services at the police headquarters in Kampala, requesting the appointment of a cybercrime officer to examine, extract, and analyze CCTV footage from the residence of the late Henry Katanga at Plot 50, Chwa road, Mbuya.

Kabega pointed out that this letter referenced an attached court order, yet no orders were actually issued until November 10 and November 22.

“My lord, unless there was another order, the only orders attached to this report are dated November 10 and 22, 2023. So, where is the court order being referenced here? Unless it was withheld from us, or this letter is misleading,” Kabega argued.

Kabega also challenged the validity of two affidavits sworn by Detective Sergeant David Beteise. He noted that these affidavits were commissioned by Magistrate Charles Opio of the Grade Two court in Makindye, who, after commissioning the affidavits, proceeded to hear and grant the application in the same matter.

“My lord, we submit that what his worship Opio did was illegal, null and void,” Kabega stated firmly. He argued that Section 3 of the Oaths Act prohibits a magistrate from adjudicating a matter in which they have personally commissioned an affidavit. Kabega further referenced Section 4 of the same Act, which explicitly prohibits a commissioner for oaths from presiding over a case in which they have exercised their commissioning powers.

“His worship Opio, having commissioned the affidavit in support of the application, cannot then sit to adjudicate and authorize orders on the same matter. In fact, he becomes a potential witness himself in the matter,” Kabega argued.

To support his assertion, Kabega cited the precedent set in Mpanga Farouk vs. Ssenkubuge Isaac and Another, where the court deliberated on whether a commissioner for oaths could exercise such powers in a matter involving parties they are directly associated with. Kabega argued that Magistrate Opio’s involvement compromised the legality of the court orders dated November 10 and November 22, rendering them unenforceable.

“Whatever he did, my lord, cannot even be remedied under Article 126(2)(c) of the Constitution,” Kabega stated.

Kabega then raised a third objection regarding the scope of the court orders, which purportedly allowed the extraction of information from mobile phones in accordance with the Computer Misuse Act. He argued that the accused could only be charged under offenses specific to that Act, which was not the case here.

Kabega further contended that the magistrate issuing these orders had acted beyond his jurisdiction, stating, “My lord, the jurisdiction for matters under this Act lies either with a Chief Magistrate or a Grade One Magistrate.” In conclusion, Kabega made a final appeal to the court, stating, “In light of this, my lord, our humble prayer is that, once an illegality has been brought to the attention of the court, it should not condone it, as it overrides everything, including any admissions.”

After defense counsel Kabega’s objections, Prosecutor Jonathan Muwaganya addressed the court to respond to concerns raised the previous day by defense counsel Elison Karuhanga, who had objected to the testimony of the prosecution’s 10th witness regarding his forensic report.

Regarding the defense’s complaint about the non-disclosure of the raw data used in the forensic report, Muwaganya defended the prosecution’s position, stating, “Our position has been, and still is, that the raw data is not the prosecution evidence that we intend to rely on.” He explained that this was why the raw data was not provided to the defense.

He added, “My lord, it is inconceivable that the prosecution would extract all electronic content from the accused’s phones simply for disclosure.”

Muwaganya clarified that only specific, relevant information was included in the report. “My lord, whatever was found relevant was specifically lifted and incorporated into the report, which was disclosed and is in possession of the defense,” he stated.

Addressing accusations that the prosecution was withholding information, Muwaganya argued that disclosing the report provided the accused with full insight into the nature and scope of the evidence against them. To further support the prosecution’s stance on non-disclosure, Muwaganya asserted that lawful access to electronic evidence requires either the consent of the device’s owner or a court order.

“If it is by court order, as in this case, then the extent of handling such evidence is confined within the bounds of that specific court order,” he explained.

He noted, “My lord, the court order here was clear; it authorized inspection, extraction, analysis, and report preparation concerning the exhibits. All relevant content was included in the report disclosed to the defense.”

Muwaganya argued that the defense’s demand for full access to the raw data would intrude excessively into their clients’ privacy. He emphasized that raw data could be misused if mismanaged, and suggested that each accused person formally consent to its release if they wished to access it.

“My lord, we propose this as a way to settle this issue; should the defense persist in seeking access to the raw data on their clients’ devices,” he added, noting that the expert could provide the data in soft copy with the owners’ consent.

On the issue of returning the physical devices to their owners, Muwaganya explained that such an action would break the chain of custody and compromise the integrity of the evidence before it was presented in court.

“This is why disclosure is managed through reports or exhibit slips rather than by physical access or transfer,” he clarified. He reminded the court that prior guidance had allowed for additional review if needed, stating, “My lord, we find this court’s guidance on maintaining the chain of evidence the most appropriate, and we pray that we continue to follow it.”

Addressing the defense’s citation of the Computer Misuse Act, Muwaganya argued that this was taken out of context, as it does not govern the handling of exhibits in criminal investigations under the Penal Code Act, such as in a murder case. Muwaganya cited relevant laws, including Section 69 of the Magistrate’s Act and Section 27 of the Police Act, which authorize police officers to search premises, recover exhibits of evidentiary value, and seize and retain such property for investigation.

To counter the defense’s claim of an illegal search of the accused’s devices, Muwaganya stated, “Police have the power to seize, recover and preserve such devices. However, access to the content therein may require a court order, which was indeed obtained in this case, as evidenced by the witness’s testimony.”

Muwaganya further referenced the case Christopher Lubaale vs. Uganda, where the court held that, following an arrest, police have the right to search an arrested person’s premises if they reasonably believe it may contain material evidence. He argued that this precedent supported the prosecution’s actions in obtaining and examining the devices and urged the court to dismiss the defense’s objections and allow the witness to complete his testimony.

Muwaganya assured the court that if the defense required additional time to review the exhibits, the prosecution would support such a request. On the defense’s argument regarding multiple court orders, Muwaganya explained that the documents referenced by the defense had not yet been presented in court, and the defense’s assumptions about their contents were premature.

He noted that the letter in question did not reference a specific court order and clarified that the forensic expert had awaited the court order before conducting the analysis.

“The issues raised with these documents are mere technicalities, as none of the documents referenced by the defense have been tendered in court yet. We, as prosecutors, will provide evidence to address these concerns when appropriate,” Muwaganya concluded.

REJOINDER

In his rejoinder, defense counsel Elison Karuhanga challenged the prosecution’s assertion that the forensic witness had selectively extracted only relevant data for his report. Karuhanga argued that potentially relevant information for the defense might have been disregarded. He questioned the witness’s authority to independently determine what information was relevant, given his access to all data
on the accused’s devices.

“My lord, the witness went through numerous phones, examined social media, and reviewed messages to identify content relevant to the case, yet he is only disclosing what he deemed relevant,” Karuhanga stated.

Karuhanga also objected to the prosecution’s refusal to disclose the full 48 hours of CCTV footage from the Katanga residence, criticizing their justification of protecting the accused’s privacy.

“My learned friend suggested, almost shockingly, that he was protecting our clients’ privacy from their own lawyers, and he would only disclose this footage if ordered by the court and with the accused’s consent,” Karuhanga argued, adding that this approach was a barrier to a fair trial.

He emphasized that in similar cases, defense teams are typically provided with complete video evidence relied upon by the prosecution. He further argued that the prosecution’s claim of protecting the chain of custody was unfounded, as no law allows the prosecution access to evidence that the defense cannot review.

“Pretrial disclosure is a legal right of the accused, not a privilege subject to the prosecution’s discretion,” he contended.

Supporting Karuhanga’s position, defense lawyer Macdosman Kabega asserted that the court orders used to authorize examination of the exhibits should be nullified, as they were based on a misapplication of the Computer Misuse Act.

“If these court orders are invalid, then the report itself collapses, as it relies entirely on those orders for authorization to inspect the evidence,” he argued.

Prosecutor Muwaganya disputed Kabega’s claims, noting that once a court order is issued, it cannot be retroactively challenged. Kabega, however, maintained that the court has an obligation to reject evidence obtained illegally. “My lord, we cannot overlook an illegality once it comes to the court’s attention.

We are not asking to overturn the magistrate’s order but merely to protect the integrity of these proceedings by excluding evidence obtained in violation of the constitution,” he stated, arguing that allowing this evidence would unfairly benefit the prosecution from procedural misconduct.

In response, Muwaganya argued that the oath commission restrictions apply only to advocates with conflicts of interest in a case and that there was no conflict here.

“My lord, it would have been different if this trial were held before the Grade Two magistrate who commissioned the orders, which is not the case,” he stated.

The presiding judge announced that he would issue his ruling, determining whether the prosecution’s 10th witness may continue testifying in this case.