Nsenga was later pronounced dead at Paragon Hospital.
Jackie was later arrested and detained at Special Investigations Unit headquarters in Kireka, Kampala for over a month not to jeopardize investigations into the incident.
At the time Police said Nsenga’s relatives planned to take her life.
Nsenga’s death put the DPP and Police on a collision course considering that Jackie is a sister of Kayihura’s wife.
And more interestingly, a senior official at the DPP’s office is a close relative of Nsenga.
This official has been pressing for Jackie’s prosecution on murder charges yet Police has rejected the move, saying she did not harbor intentions of killing Nsenga.
CIID Deputy Director, Fred Musana on March 14 wrote to DPP who had requested that Jackie be charged with the offence of murder: “Whereas it is not disputed that the suspect caused the death of her husband, we are of the view that the evidence on record cannot prove malice aforethought in this case of murder.”
He added: “There is no evidence on record to suggest that before the incident took place, there was any fight, disagreement, quarrel or breakdown in communication between the couple.”
Musana noted that this is not reflected in any of the witnesses’ statements namely, the housemaids, Namwanje Jesca, Dimanche Esperance and the Shamba boy, Gideon Nsabimana who were present in the home that fateful day.
“Earlier that day, the suspect had asked for money to pay the Shamba boy which the husband readily provided,” said Musana.
However, Principal State Attorney, David Ndamurani has sworn an affidavit in support of an application seeking to compel Kayihura, DPP Richard Butera and Attorney General Peter Nyombi to produce Jackie to face charges of murdering her husband.
Below is the Ndamurani’s testimony that gives the chronology of events that worsened relations between Police and the DPP over Jackie’s fate.
I, David Ndamurani-Ateenyi of c/o Office of the Director of Public Prosecutions do solemnly swear and state as follows:
That I am an adult male Ugandan of sound mind employed as a Principal State Attorney in the Office of the Director of Public Prosecutions (hereinafter referred to as the third Respondent).
That I am the action officer in the present case having been allocated the police case file by the DPP on February 4, 2013 and I swear this affidavit in reply in that capacity.
That on that day, the DPP received a case file 11 from the CIID of the Uganda Police Force vide reference Police Jinja Road TAR 21 of 2012 with a forwarding letter titled: “Alleged causing of death to the prejudice of late Nsenga Juvenal,” requesting for perusal of the case papers and appropriate legal advice.
That on February 11, 2013, the case file was returned to CIID headquarters with instructions that outstanding inquiries be completed.
On March 1, 2013, CIID re-submitted the case file to the DPP with a Progress Report on the status of investigations for perusal and further legal guidance.
On March 7, 2013, the DPP returned the case file to CIID headquarters with a detailed legal opinion advising that the suspect be charged with the offence of murder contrary to sections 188 and 189 of the Penal Code Act.
On March 14, 2013, Police resubmitted the case file with a forwarding letter, querying the findings of the DPP in their evaluation of the evidence on record in relation to the ingredient of malice aforethought.
On March 15, 2013, the DPP dispatched the case file to CIID headquarters with a forwarding letter reiterating its earlier findings that there was sufficient and credible of the envisaged murder charges against the suspect and as such, directed that she be charged accordingly.
On March 20, 2013, the case file was once again resubmitted to the DPP with a further request that the latter revisits its earlier findings, decision and directions in the matter.
On the same day, the DPP, after a thorough re-evaluation of the evidence on record, returned the file to CIID headquarters with firm instructions that the suspect be charged with the offence of murder as previously advised.
That contrary to averments contained in Paragraphs 13 of the two affidavits sworn by the two Applicants (Nsenga’s brothers Bisangwa and Kananura) in support of the Notice of Motion, it was not possible for the DPP to prepare and file an appropriate charge sheet in Court in the present case because the case file has been in the sole and exclusive custody of the agents of IGP Kale Kayihura from March 14, 2013 to date with standing instructions that murder charges be preferred against the suspect.
The reasons unknown to DPP and in complete disregard and contempt of the spirit and letter of Article 120 of the Constitution of the Republic of Uganda, 1995, the agents of the IGP have failed, omitted, ignored, and or refused to comply with all previous instructions to charge the suspect with the offence if murder as directed. That what is stated herein above is true to the best of my knowledge, information and belief.
On preferring murder charges against Uwera, on March 7, 2013, the DPP wrote to CIID, thus: Reference is made to the above captioned matter alongside your forwarding letter of vide reference CIID/A62/105 dated March 1, 2013.
After a careful perusal of the assembled evidence read together with a copy of your Progressive Report on the cause of death of Juvenal Nsenga addressed to the IGP and copied to us, we are of the considered view that the present suspect be charged with the offence of murder to the prejudice of her late husband, Juvenal Nsenga.
The offence of murder is a creature of Section 188 of the Penal Code Act that provides, inter-alia, that: “Any person who with malice aforethought causes the death of another by any unlawful act or omission commits murder…”
In advising, that sufficient and credible evidence exists in support of a charge of murder against the present suspect. We are alive to the essential ingredients of the offence which the prosecution must prove in order to succeed.
Uncontroverted evidence on record points to the present suspect as sole driver of Motor-vehicle Reg. No. UAL 933 M that knocked down Juvenal Nsenga on the material night which in turn resulted in his eventual death.
She does not deny participation either. Besides, the deceased while at Paragon Hospital reportedly told his immediate relatives that it was his wife (and now the present suspect) who had “killed” him.
Given the foregoing, it is our finding that the present suspect authored her late husband’s death.
The courts are cognizant of the difficulty of proving an accused’s mental disposition and are thus agreeable to an inference of such disposition from circumstances surrounding the homicide.
To establish the existence of malice forethought, Court normally takes into account the number of injuries inflicted, the part of the body targeted, the nature of weapon used, and the conduct of the suspect before, during and after the attack.
Judging from the evidence on record, it is abundantly clear that the injuries visited upn the victim were extremely grave in nature and the part of the body upon which those injuries were inflicted was the victim’s head which is a very delicate region of the human body by whatever standards.
In response to the DPP, CIID Deputy Director, Fred Musana wrote back on March 14, thus: The file was received from your office with a forwarding letter, Ref: HQS-CO-044-2013 dated March 7, 2013 advising us to charge the suspect with the offence of murder.
Whereas it is not disputed that the suspect caused the death of her husband, we are of the view that the evidence on record cannot prove malice aforethought in this case of murder due to the following reasons:
There is no evidence on record to suggest that before the incident took place, there was any fight, disagreement, quarrel or breakdown in communication between the couple.
This is not reflected in any of the witnesses’ statements namely, the housemaids, Namwanje Jesca, Dimanche Esperance and the Shamba boy, Gideon Nsabimana who were present in the home that fateful day.
Earlier that day, the suspect had asked for money to pay the Shamba boy which the husband readily provided.