By Catherine K. Nabasirye
Some lessons from the recently decided Nsenga case
Sex can change everything. Jackline Uwera Nsenga, 36, was on 23 September 2014 convicted and sentenced to 20 years in prison for the murder of her husband Juvenal Nsenga, 48. According to the trial judge His Lordship Duncan Gaswaga, “the convict had not enjoyed her marriage especially in the last ten or so years. This was a family matter that went out of hand.” Among other marital problems, court was informed that couple did not sleep in the same bed though they lived in the same house. They did not greet each other nor discuss or do things together as husband and wife.
It appears that there was a rivalry love triangle where Jackie Uwera was competing with one Loretta Umutoni, 27, for the love of Juvenal Nsenga (deceased). Loretta was Mr. Nsenga’s niece. She was orphaned at an early age and raised by the Nsengas since 2001. Sometime in 2011, Uwera became uncomfortable with Loretta’s continued stay at home and asked her to leave. This was after she noticed that Loretta had become an insolent child who dressed skimply around her husband and often refused to greet or obey her. To make matters worse, Uwera intercepted an SMS text sent to Loretta by the deceased reading “I don’t hate you, I am just a little bit tired, I love you.”
Twelve days before Nsenga’s untimely death, Uwera was shocked to find Loretta back at the house. A frank discussion ensued among the three. Uwera reportedly said in an angry tone, “By the way I am capable of doing very many things that I myself am scared of the length I can go.” These are words she wishes to take back right now because court did not take them lightly in convicting her.
The lesson to take from this is not new. The English playwright and poet William Congreve (1670-1729) left us an eternal reminder: “Hell hath no fury like a woman scorned.” Sex is a huge requirement in a marriage, and there is a lot of damage that can come from its absence.
How well do you know your car? Personally I don’t know much about cars but what I am sure of is this: a car cannot automatically accelerate when “in parking” unless you move it to “drive”. Ms. Nsenga testified that on the fateful night, she drove a Toyota Mark X. She parked it at the home gate, got out and rang the doorbell twice. This clearly implies that she must have left the car in “parking” or “neutral”. How then could she have accidentally stepped on the accelerator pedal causing the car to “jerk”? Does this make any sense to any of you who, like Ms. Nsenga, have driven for eleven years?
However, I have heard that some people mistakenly press down hard on the “accelerator” pedal instead of the “brake” pedal hence causing accidents. While an anomaly of this kind might have been the cause of death of Uwera’s husband of nineteen years, she did not know enough about her car to convince the trial judge. The lesson we should take from this is that all drivers, regardless of gender, are accountable for the actions of their cars.
Having read 698 pages of the testimony recorded by the High Court in the Nsenga case, one truth is inescapable. On January 10, 2013 at about 9:45pm, only two people – Juvenal Nsenga and his wife Jackie Uwera Nsenga – were at that green gate that kept out strangers from their matrimonial home located at Plot 6 Muzindaro Road in Bugolobi. It is not known whether they talked before the incident. So how did our learned friends arrive at the conclusion that Uwera had the intention to kill her husband when he came to open the gate?
Ms. Nsenga’s lawyers (all male) argued that what happened on that fateful night was a deeply regrettable accident but court rejected that story and chose to believe evidence adduced by the prosecution lawyers (all female) in support of Juvenal Nsenga’s dying declaration (his last words before he died). In my view, what we learn from Justice Gaswaga’s analysis is that malice aforethought (intention to kill) may be deduced or inferred from circumstances surrounding the killing in question. For instance, the accumulation of mistrust, hatred, frustration and threats in a marriage over a period of ten years can result in the formation of a tinderbox which may constitute the bedrock of intention to kill one’s spouse. This should make us all deeply concerned that by sleeping in separate bedrooms and indulging in other mundane beefs one may become the first suspect if, God forbid, anything happened to one’s spouse.
From a strictly feminist lawyer’s perspective, I am disappointed by the weak and unimpressive mitigation conducted on behalf of Ms. Nsenga. Mitigation is that phase of a murder trial after pronouncement of a conviction where the convict is given a chance to provide reasons why he or she should receive a lenient sentence. With proper mitigation, I believe Nsenga could have gotten a lesser sentence than the twenty years imprisonment to which she was condemned.
At the end of the ten-week marathon trial, Justice Gaswaga held the firm and carefully considered view that the Nsengas had lived an estranged life. Yet Uwera and her lawyers downplayed the seriousness of the situation by referring to the chronic, grave and excruciating problems of the Nsenga marriage as “mere challenges”. This was plainly bad mitigation strategy because the trial judge had offered them an olive branch by finding that all these problems had had “a negative impact on Uwera’s life”.
She was the victim of unrequited love in a scornful love triangle between her husband and foster child. The inability of the scorned lover to express and fulfill emotional needs may lead to feelings such as depression, low self-esteem, anxiety, and rapid mood swings between depression and euphoria. I submit that the above feelings characterised Uwera’s state of mind on the fateful night. Given that justice must be tempered with mercy for scorned lovers and other persons implicated in crimes of passion. In my view, the appropriate sentence for Jackie would have been ten years imprisonment. And if she had pleaded guilty to manslaughter or even murder at the beginning of the trial, she could easily have gotten at most six years imprisonment.
Unfortunately, Uwera’s lawyers gave their mitigation as follows: that she is a first-time offender, who has two children and had been taking care of them by the time she was remanded, and so on and so forth. They also wasted time and resources arguing a futile point at the eleventh hour that there is no prescribed penalty for murder; a clearly erroneous view of the decision of the Supreme Court of Uganda in Susan Kigula versus Attorney General. In that case, the Supreme Court explained that trial judges had discretion whether to issue a death sentence or imprisonment as the penalty for murder. It follows therefore that the best use of a lawyer’s services after conviction is to make a spirited and exhaustive mitigation but, unfortunately, this was not done for Ms. Nsenga.
Ms. Catherine K. Nabasirye is a research assistant at Legal Brains Trust