Uganda v Hussein Hassan Agade & Anor (Criminal Session Case No. 0001 of 2010) [2016] UGHCCRD 5 (27 May 2016)

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Criminal law|Evidence Law|Admissibility
Case summary
Court ruled that there is no doubt the uncorroborated evidence of an accomplice is admissible in law.   In the instant case, both PW1 and PW2 admitted in their sworn testimonies that they participated in the commission of the offence of terrorism at different stages. When he was indicted of this offence, court  convicted PW2 on his own plea of guilty when he confessed to having played a central role in perpetrating the crime. He testified at the trial while serving a twenty-five year sentence that court had earlier imposed on him. Court thus held that he did not seek to exculpate himself in any way, from any wrongdoing in the commission of the offence.   Court further considered whether the confession of one of the accused person was corroborated. In this case  prosecution adduced evidence that the 4th accused person led the police to his Namasuba home, and identified for them the pit latrine where he had thrown the phones he had used in the execution of the bombing mission. Court held that the recovery of these phones from the latrine indeed corroborated the 4th accused’s  retracted confession that he did participate in the Kampala bombing mission.   Court accordingly found each of the accused persons guilty of committing the offences of terrorism, murder, and attempted murder, with which they were indicted.

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

INTERNATIONAL CRIMES DIVISION

CRIMINAL SESSION CASE No. 0001 OF 2010

(Arising from Nakawa Chief Magistrate’s Court Crim. Case No. 574 of 2010)

UGANDA PROSECUTOR

VERSUS

1. HUSSEIN HASSAN AGADE;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;ACCUSED

2. IDRIS MAGONDU

3. ISSA AHMED LUYIMA ][

4. HASSAN HARUNA LUYIMA ][

5. ABUBAKARI BATEMETYO

.6 YAHYA SULEIMAN MBUTHIA ][

7.HABIB SULEIMAN NJOROGE

8.OMAR AWADH OMAR

9.MOHAMED HAMID SULEIMAN ][

10.SELEMANI HIJAR NYAMANDONDO

11.MOHAMED ALI MOHAMED

12. DR.ISMAIL KALULE ][

13.MUZAFAR LUYIMA ][

BEFORE:- THE HON MR. TUSTICE ALFONSE CHIGAMOY OWINY - DOLLO

JUDGMENT

The 13 (thirteen persons) named herein above, who are herein after also referred to respectively as Al to A13 following the chronological order of their listing herein above as accused persons, have been

Indicted on various counts and with regard to various offences as set out herein below. The first charge, comprising three counts, jointly accused A1 to A12 of having committed the offence of terrorism c/s 7 (1) & (2) (a) of the Anti-Terrorism Act 2002. The first count was with regard to the discharge of explosives at the Kyadondo Rugby Club, the second count covered the discharge of explosives at the Ethiopian Village Restaurant, and then the third count accused them of the delivery or placement of explosives at the Makindye House.

The second charge, in which Al to A12 have jointly been charged in one Count, is the offence of belonging to a terrorist organization c/s 11 (1) (a) of the Anti-Terrorism Act 2002. The particulars of the charge state that between the years 2006 and 2010, Al to A12 belonged to Al- Shabaab, which is stated to be an affiliate of Al-Qaeda listed under the Anti-Terrorism Act 2002 as a terrorist organization. Third, Al to A12 have jointly been charged, in 76 Counts, with the offence of murder c/s sections 188 and 189 of the Penal Code Act. The particulars of the offence in each of these counts state that Al to A12 are responsible for causing the death, with malice aforethought, of the respective persons named in each of the counts. Each of the counts name either Kyadondo Rugby Club, or Ethiopian Village Restaurant, as the place each of the murders, for which Al to A12 are charged, took place.

Fourth, Al to A12 have jointly been charged, in 10 Counts, with the offence of attempted murder c/s section 204 of the Penal Code Act. The particulars of the offence state that they attempted the murder of ten persons; and in each of the counts, either Kyadondo Rugby Club, or Ethiopian Village Restaurant, is named as the place each of the attempted murders charged took place. Fifth, A13 has been charged alone, in two counts, with the offence of being an accessory after the fact c/ss 28(1) and (29) of the Anti Terrorism Act 2002. The

particulars of the charge in the first count is that in the month of July 2010, A13 received Idris Nsubuga, who to his knowledge had committed an offence of terrorism, and assisted him in order to enable him to escape.

The particulars in the second count of the offence is otherwise the same; save that therein the person A l3 is alleged to have received with the knowledge that he had committed the offence of terrorism, and assisted in order to enable to escape, is named as Hassan Haruna Luyima. Finally, A 12 has been charged alone, in one Count, with the offence of aiding and abetting terrorism c/s 8 of the Anti Terrorism Act 2002. The particulars of the charge are that in various places in Uganda, A 12 aided and or abetted and rendered support to Al-Shabaab group, knowing and or having reason to believe that the support rendered would be applied and used for, or in connection with, the preparation and or commission of acts of terrorism; to wit, the July 2010 Kampala twin bombings.

Court explained to each of the Accused persons the respective offences, with which each of the Accused persons has, either jointly with others, or alone, been charged. Each of the Accused persons expressed to Court that they had understood the charges as explained to them. However, they each made a categoric denial of any involvement whatsoever in each of the offences with which they have been charged; and accordingly, the Court entered a plea of 'Not Guilty' with regard to each of them. This therefore necessitated the conduct of a full-blown trial; which this Court carried out.

BURDEN OF PROOF

In law, it is incumbent on the Prosecution to prove the guilt of the Accused person as charged. This burden of proof perpetually rests on

the Prosecution, and does not shift to the Accused person; except where there is a specific statutory provision to the contrary (see Woolmington vs D.P.P. [1935] A.C. 462, and Okethi Okale & Ors. vs Republic [1965] e.a. 555). However, in none of the several charges brought against the Accused persons herein does the burden shift to them to prove their innocence. Second, the standard or threshold required to prove the case against the Accused person is that the proof must be beyond reasonable doubt. This does not necessarily mean proof with utmost certainty, or 100% proof. Nonetheless, the standard is met only when, upon considering the evidence adduced, there is a high degree of probability that the Accused in fact committed the offence.

There is a host of decisions, which I am citing hereunder, where Courts have pronounced themselves on the issue of the burden and standard of proof required to establish the guilt of an Accused person.

I will seize the benefit of these authorities to guide me on the matter of burden and standard of proof; and, thus, enable me reach a just decision in the instant matter before me. In Miller vs. Minister of Pensions [1947] 2 All E.R. 372 at page 373 to page 374, Lord Denning stated quite succinctly that:-

"The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: 'of course it is possible but not in the least probable', the case is proved beyond reasonable doubt; but nothing short of that will suffice."

In Andrea Obonyo & Ors. V. R. [1962] E.A. 542, the Court stated at p. 550 as follows:

to the standard of proof required in criminal cases denning, l.j. (as he then was), had this to say in Bater v. Bater [1950] 2 All E.R. 458 at 459:

It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear.’

That passage was approved in Hornal v. Neuberger Products Ltd. [1956] 3 All E.R. 970, and in Henry H. Ilanga v. M. Manyoka [1961] E.A. 705 (C.A.). In Hornal v. Neuberger Products Ltd., HODSON, L.J., cited with approval the following passage from kenny’s outlines of criminal law (16th Edn.), at p. 416:

A larger minimum of proof is necessary to support an accusation of crime than will suffice when the charge is only of a civil nature. ... in criminal cases the burden rests upon the prosecution to prove that the accused is guilty ‘beyond reasonable doubt’. When therefore the case for the prosecution is closed after sufficient evidence has been adduced to necessitate an answer from the defence, the defence need do no more than show that there is reasonable doubt as to the guilt of the accused. See R. v. Stoddart (1909) 2 Cr. App. Rep. 21 7 at p. 242.

[I]n criminal cases the presumption of innocence is still

stronger, and accordingly a still higher minimum of evidence is

required; and the more heinous the crime the higher will be this minimum of necessary proof.

Where, on the evidence adduced before Court, there exists only a remote possibility of the innocence of an Accused person, it would mean the Prosecution has proved its case beyond reasonable doubt; hence, the Prosecution would have conclusively discharged the burden that lay on it to prove the guilt of the Accused. In Obar s/o Nyarongo v. Reginam (1955) 22 E.A.C.A. 422, at p. 424 the Court held that:

We think it apt here to cite a passage from the recent Privy Council case of Chan Kau v. The Queen (1952) W.L.R. 192. ... At p. 194 Lord Tucker said this:

Since the decision of the House of Lords in Woolmington v. Director of Public Prosecutions (1935) A.C. 462; and Mancini v. Director of Public Prosecutions 28 C.A.R. 65; it is clear that the rule with regard to the onus of proof in cases of murder and manslaughter is of general application and permits of no exceptions save only in the case of insanity, which is not strictly a defence.’”

In Okethi Okale v. R. [1965] E.A. 555, the trial judge had misdirected himself on the onus of proof; and made remark on the defence evidence, stating that:

"I have given consideration to this unsworn evidence but I do not think it sufficient to displace the case built up by the prosecution or to produce a ‘reasonable doubt’.’’

On appeal, the Court responded at p. 559 as follows:

We think with respect that the learned judge’s approach to the onus of proof was clearly wrong, and in Ndege Maragwa v. Republic (1965) E.A.C.A. Criminal Appeal No. 156 of 1964 (unreported), where the trial judge had used similar expressions this court said:

"... We find it impossible to avoid the conclusion that the learned judge has, in effect, provisionally accepted the prosecution case and then cast on the defence an onus of rebutting or casting doubt on that case. We think that is an essentially wrong approach: apart from certain limited exceptions, the burden of proof in criminal proceedings is throughout on the prosecution. Moreover, we think the learned judge fell into error in looking separately at the case for the prosecution and the case for the defence.

In our view, it is the duty of the trial judge ... to look at the evidence as a whole. We think it is fundamentally wrong to evaluate the case for the prosecution in isolation and then consider whether or not the case for the defence rebuts or casts doubt on it. Indeed, we think that no single piece of evidence should be weighed except in relation to all the rest of the evidence. (These remarks do not, of course, apply to the consideration whether or not there is a case to answer, when the attitude of the court is necessarily and essentially different.)” (emphasis added).

In the two combined appeal cases of R. v. Sharmpal Singh s/o Pritam Singh; & Sharmal Singh s/o Pritam Singh v. R. [1962] E.A. 13, the Privy Council had to decide whether the accused strangled his wife under culpable circumstances or in an act of excessive sexual embrace. It stated at p. 15, that the prosecution:

"... not only had to dispose of the defence set up but had also to prove that the evidence adduced by the prosecution was consistent only with murder. ... It is now well established by a series of authorities, of which Mancini v. the Director of Public Prosecutions [1942] A.C. l, is the first and still the best known, that it is the duty of the judge to deal with such alternatives if they emerge from the evidence as fit for consideration, notwithstanding that they are not put forward by the defence. This may impose a heavy burden on the judge when, as in the present case, attention is concentrated by the defence on quite different issues.”

In Abdu Ngobi vs Uganda, S.C.Cr. Appeal No. 10 of 1991, the Supreme Court expressed itself as follows; with regard to treatment of evidence:

Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt. If the defence has successfully done so, the accused must be acquitted; but if the defence has not raised a doubt that the prosecution case is true and accurate, then the witnesses can be found to have correctly identified the appellant as the person who was at the scene of the incidents as charged.”

I should however point out that while it is advisable and useful for the defence to cause a reasonable doubt to hang over the prosecution case, by punching a hole, or laying bare the deficit, in the case, this does not arise in every case. It only does so where the prosecution has presented a fairly strong case that may need an explanation from the Accused. This does not amount to shifting the burden of proof to the Accused; as the burden lies perpetually on the Prosecution to prove the guilt of an Accused person beyond reasonable doubt. In Byamungu s/o Rusiliba v. Rex (1951) 18 E.A.C.A. 233, the Court considered the defence of alibi put up by the defence, which the trial Court had rejected as untrue, the appellate judges did not question it; but, with regard to the burden of proof, they said this, at p. 237: -

...the essential question is not the truth or untruth of the defence, but whether the case for the prosecution was proved beyond reasonable doubt, and after a very careful consideration of the record, we are not satisfied that it was.”

Proof of guilt may be established through direct, or circumstantial, evidence. Direct evidence ordinarily means evidence of events as witnessed by any of the five senses; namely sight, touch, smell, taste, and hearing. On circumstantial evidence, the law is that it may in fact offer the best evidence; and may prove a case with the certainty or precision of mathematics. However, for circumstantial evidence to prove a case beyond reasonable doubt, it must irresistibly point to the guilt of the Accused person. Hence, inference of guilt, from circumstantial evidence, is only justified when the inculpatory facts are incompatible with the innocence of the Accused; and must be incapable of explanation upon any other reasonable hypothesis than that of guilt. Furthermore, there must be no co-existing circumstance that would weaken or altogether negate the inference of guilt.

For Court to place reliance on circumstantial evidence, it is enjoined to consider the totality of the evidence adduced before it. This requires taking a holistic consideration of the entire evidence adduced; and not a selective approach that considers pieces of evidence in isolation from the other pieces of evidence relevant for the determination of the issue at hand. Further, the direct or circumstantial evidence relied upon, as having proved the prosecution case, must be evidence adduced before Court; and not any material or fact extraneous to the trial. However relevant or material a piece of evidence may be, if it has not been adduced and canvassed at the trial and subjected to the requisite scrutiny, such evidence remains extraneous matter; and is of no probative or evidential value at all in the determination of the case against the Accused person.

In the Okethi Okale v. R. case (supra), the trial judge had come up with a theory inconsistent with the actual evidence adduced in support of the prosecution case on how the fatal injury had been caused; and he is quoted at p. 557 to have stated thus: -

This is a case in which reasoning has to play a greater part than actual evidence. ”

On appeal, the Court responded tersely as follows: -

"With all due respect to the learned trial judge, we think that this is a novel proposition, for in every trial a conviction can only be based on actual evidence adduced and not on any fanciful theories or attractive reasoning. We think it is dangerous and inadvisable for a trial judge to put forward a theory of the mode of death not canvassed during the evidence or in counsel’s speeches (see R. vs Isaac [1965] Crim. L.R. 1 74). ”

Pursuant to this position of the law on evidence which is applicable and admissible, I had to administer a serious warning to the lady and gentleman assessors, and in the same vein do hereby warn myself, regarding the most heinous and gruesome murder of Ms Joan Kagezi, hitherto the lead Prosecution Counsel in this trial. This wanton and diabolical felony, shook the entire country, and disrupted the trial for quite a while. Abhorrent and tragic as it surely is, it must not in any way have influence on the Court or the assessors in the exercise of their sworn duty to accord each of the thirteen persons standing trial before this Court a just and fair trial, as is required by law. I must add here that this position would not change even if it were to emerge that investigations had established that anyone, or all, of the Accused persons herein was, or were, behind that most horrendous act.

Any revelation that any of the Accused persons was responsible for that evil deed would instead give rise to a separate trial altogether. The murder having occurred in the course of her prosecuting the thirteen persons standing trial before me, it would gravely offend the principle of fair trial for me, or the assessors in this trial, to take charge of the conduct of the other trial. However just, the present assessors and I might be, in conducting the other trial, if however any conviction results there from, it is self-evident that there would be a most unfortunate indelible and pervasive perception that justice would not have been done. The Court and the assessors in this trial must therefore wholly disabuse themselves of any influence, which this repugnant deed might have had on them; and instead rely strictly on the evidence adduced before this Court during the trial.

OFFENCE OF BELONGING TO A TERRORIST ORGANISATION

I think it makes sense to dispose of the second charge - that of

belonging to a terrorist organisation - first. In the course of summing

up to the assessors, I directed them not to bother to advise me on that

charge; as on a point of law, I had made up my mind to strike the

charge from the indictment. I am fully aware that both the

prosecution and the defence had canvassed the matter and made

submissions thereon. However, because my decision thereon is based

strictly on law, I thought it improper to have the assessors advise me

on it. Section 2 (The Interpretation Section) of the Anti-Terrorism Act

provides that 'terrorist organization' means an organization specified

in the 2nd Schedule to the Act. This is a restrictive provision, which

would exclude even the most notorious of the known terrorist organizations, for not being listed in the 2nd Schedule to the Act.

Similarly, section 11 of the Anti-Terrorism Act prescribes that a person who belongs, or professes to belong, to a terrorist organization commits an offence. However, section 10 (1) of Anti-Terrorism Act provides that the organizations specified in the 2nd schedule to the Act are declared to be terrorist organizations; and adds that: -

"any organisation passing under a name mentioned in that Schedule shall be treated as terrorist organisation whatever relationship (if any) it has to any other organisation bearing the same name".

Section 10 (6) of the Act provides that in the section, "organisation” includes any association or combination of persons."

The key words in section 11 of the Act are: 'belonging' or 'professing to belong' to a listed terrorist organization. Therefore, to merely 'profess to belong' to a listed terrorist organization would suffice to have such a person charged with commission of the offence of belonging to a terrorist organization. The ingredients of the offence are: -

  1. Existence of a terrorist organization.

  2. The terrorist organization must be listed in the Act.

  3. The Accused person must belong, or profess to belong, to a terror organization listed in the 2nd Schedule to the Act.

Ingredient (i)

(Existence of a terrorist organisation)

I find it preferable not to refer to the evidence of PW1, A3, and A4, on the matter; and will accordingly restrict myself to the evidence of PW78 that Al-Shabaab had threatened to attack Uganda; and that it

claimed responsibility for the Kampala bombings. In addition to the link between Al-Shabaab and Al-Qaeda, as was brought out by the prosecution, I should point out that it is well established in the public domain that Al-Shabaab is an organization that uses unconventional means to achieve its cause. This is evident from the multiple acts in the region, attributed to them, which target non-combatants or the soft underbelly of society. I therefore think it proper to take judicial notice of that fact. However, that is only part of the requisite ingredients for bringing Al-Shabaab within the specification of terrorist organization; as is spelt out in the Anti-Terrorism Act.

Ingredient (ii)



(Organisation to be listed in the 2nd Schedule to the Act)

In 2010 when the Kampala bombings took place, Al-Shabaab was not among the organizations listed in the 2nd Schedule to the Anti Terrorism Act as terrorist organizations. However, by 2010, Al-Qaeda was listed in the 2nd Schedule to the Anti Terrorism Act, as a terrorist organization. The Prosecution referred me to some selected authoritative published works, for my consideration, to guide me to reach a finding that Al-Shabaab was one of the organizations listed in the 2nd Schedule to the Act by reason of the fact that it had a close association with Al-Qaeda. First, is 'World Terrorism: An Encyclopaedia of Political Violence from Ancient Times to Post 9/11 Era' (2nd Edn., Vol. 1 - 3; Routledge, at p.444), where James Cimens states that:-

"Al-Shabaab is a self-declared ally of Al-Qaeda; having sworn allegiance to Al-Qaeda leader Osama Bin Laden in September 2009, and then establishing formal alliance in February 2010."

Second, 'Al-Shabaab in Somalia: The History and Ideology of a Militant Islamist Group; 2005 - 2012; Oxford University Press, p.45', where Stig Jarle Hansen, after an extensive and well considered analysis of the Al-Shabaab as

an organization, concludes that Al-Shabaab is an ally of Al-Qaeda. He states therein that:-

"Al Shabaab is more than a product of insecurity. It is the export of

Al Qaeda's ideology of Global Jihad in Somalia."

Third, is the document intituled 'Al-Qaeda and Affiliates: Historical Perspective, Global Presence, and Implications for US Policy' (Report of the Congressional Research Service to Congress; dated Feb. 5th 2010, p. 19 - 20).

From these literary and official works, the prosecution submitted quite strongly that there in an association between Al-Qaeda and Al Shabaab. It identified such key phrases as 'Al-Shabaab is an export of the Al-Qaeda ideology of Global Jihad in Somalia'Al-Shabaab has been an affiliate of Al-Qaeda since 2005'; 'Al-Shabaab swore allegiance to Al-Qaeda's Osama bin Laden in September 2009'\ 'Al-Shabaab leadership made a formal alliance with Al-Qaeda in February 2010'\ 'Al-Shabaab is a self-declared ally of Al-Qaeda', to mean that Al- Shabaab is in fact part of Al-Qaeda; and so, by reason of that, it was a terrorist organization covered by the 2nd Schedule of the Act in 2010 when the Kampala attacks took place.

I must confess. I never had the time to read the works by these learned authors; so, I did not directly benefit from them. I had to rely on the quotations and submissions made by learned State Counsels. Fortunately, in their submissions on these works, State Counsels succinctly brought out the relationship or link between the Al- Shabaab and the Al-Qaeda. The key phrases, from these books, which characterize the link between the two organizations, are: "Al-Shabaab being an affiliate of Al-Qaeda", "Al-Shabaab having sworn allegiance to Al-Qaeda", "Al-Shabaab leadership having made a formal alliance with Al-Qaeda" and "Al-Shabaab being a self declared ally of Al-

Qaeda". Thus, the key and determinant words from these phrases are 'affiliate', 'allegiance', 'alliance' and 'ally'.

However, the relevant provisions of section 10(1) of the Anti Terrorism Act, with regard to the organizations specified in the 2nd Schedule to the Act, are that: -

"any organisation passing under a name mentioned in that Schedule shall be treated as terrorist organisation whatever relationship (if any) it has to any other organisation bearing the same name".

It therefore follows that for an organization to qualify or be treated as belonging to a terrorist organisation within the meaning assigned to the term by the Act, it must either be listed in the 2nd Schedule to the Act, or alternatively pass under a name mentioned in that Schedule. Unfortunately, at the material time, Al-Shabaab was not listed in the 2nd Schedule to the Act, and did not pass under a name of any of the organizations listed in the said Schedule.

The Oxford Dictionary of English (2nd Edn., O.U.P.) defines the noun 'affiliate', to mean: 'a person or organization officially attached to a larger body'. It defines the noun 'allegiance', to mean: 'loyalty or commitment to a superior or to a group or cause'. It defines the word 'alliance' to mean: 'a union or association formed for mutual benefit, especially between countries or organizations'. It defines the noun 'ally' to mean: 'a person or organization that cooperates with or helps another in a particular activity'. Even if one applies the most liberal rule of construction, I am unable to see how any, of the references to Al-Shabaab being "an affiliate of Al Qaeda", "having sworn allegiance to Al-Qaeda", "made a formal alliance with Al-Qaeda" and "a self­declared ally of Al-Qaeda", with which the treatises cited have classified the relationship between the two organizations, could be construed to mean Al-Shabaab was 'passing under the name' of Al- Qaeda.

In the case of Noor Mohamed Jiwa v. Rex (1951)18 E.A.C.A. 155, Court was confronted with the task of construing whether the word ‘and’ was the same as ‘or’ in the enactment. The Court referred to Maxwell on Interpretation of Statutes 9,h (1946) Edition, on how to avoid absurdity in giving effect to the intention of the legislature. It cited the passage on page 212 of the book, which stated as follows:-

Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.

This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the Legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning.

Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. The rules of grammar yield readily in such cases to those of common sense.”

From a careful perusal of the wordings of section 10(1) of the Anti Terrorism Act, it is clear that the words do not in their ordinary meaning and grammatical construction, lead to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship, or injustice, presumably not intended by the legislature. The words are quite clear, from their ordinary meanings, that it is either organizations listed in the 2nd Schedule to the Act, or those passing under the name of such organizations, that are covered by the term 'terrorist organization' within the meaning assigned to that term by the Act. I therefore fail to see how the learned treatises cited above could qualify the Al-Shabaab as a terrorist organization within the meaning attached to the term 'terrorist organization' by section 10 of the Act.

I believe it is organizations such as the Al-Qaeda in Yemen, Al Qaeda in the Islamic Maghreb, or any other organization passing under the name of a listed terrorist organization, even though they may in fact enjoy operational or strategic independence from the mainstream organization under whose name they pass, that are covered by the very clear and unambiguous provisions of the Act. It was, certainly, owing to the realization that no stretch of construction could bring the Al Shabaab under the 2nd Schedule to the Act, as it was then, that Parliament had to amend that Schedule to expressly include the Al- Shabaab as a terrorist organization; and thereby fulfil its intention.

It follows from the above, that the prosecution has failed to prove the charge against any of the accused, from Al to A12, of belonging to a terrorist organization in contravention of the Anti Terrorism Act. Having found that the provision in the Act, regarding terrorist organization, does not cover Al-Shabaab, which the Accused persons are charged with having belonged to, I find it pointless to determine whether, or not, the accused persons were members of a terrorist organization; which is the third ingredient of the offence. I take

cognizance of the fact that, under the Act, the offence of terrorism is not limited to 'belonging to a terrorist organization' within the meaning assigned to it by the Act. It also includes the commission of a terrorist act; without the need to belong to any organization at all.

The offence of committing a terrorist act, and that of belonging to a terrorist organization, are distinct and separate from, and as well independent of, each other; and neither of them is contingent on the other. In the event, I strike out the charge of belonging to a terrorist organization with which Al to A12 have been jointly indicted.

THE OFFENCE OF TERRORISM

The ingredients, or what constitutes the offence, of terrorism are set out in section 7(2) of the Anti Terrorism Act; which provides that the offence is committed when a person:-

for vurvoses of influencing the Government or intimidating the public or g section of the public gnd for g voliticgl. religious. socigl or economic gim. indiscrimingtelv without due reagrd to the sgfetv of others or vrovertv. cgrries out gll or gnv of the following gets” (emphasis added).

These acts are then enumerated in section 7(2) (a) - (j) of the Act. Thus, the key provisions of section 7(2) of the Act, for consideration to determine the ingredients of the offence of terrorism are: -

  1. The purpose or purposes for carrying out the act or acts;

  2. The manner the act is, or acts are, carried out;

  3. The nature of the act that is, or acts that are, carried out.

In the three counts of terrorism in the indictment, the act for which the Accused persons have been charged, and which the Prosecution was under duty to establish, is that contained in section 7(2) (a) of the Act; namely: -

"intentional and unlawful manufacture, delivery, placement, discharge or detonation of an explosive or other lethal device, whether attempted or actual, in, into or against a place of public use, a State or Government facility, a public transportation system or an infrastructure facility, with the intent to cause death or serious bodily injury, or extensive destruction likely to or actually resulting in major economic loss”.

This is because section 7(2) of the Act provides expressly that the offence of terrorism is committed when a person carries out ‘‘all or any” of the acts set out in section 7(2) (a) - (j) of the Act. Accordingly then, the ingredients of the offence of terrorism contained in section 7(2) (a) of the Act, each of which the Prosecution was under duty to establish in order to prove the offence charged, are: -

  1. intentional and unlawful attempted or actual manufacture, delivery, discharge or detonation of explosive or lethal device, in, into, or against a place of public use, State or Government facility, a public transportation system or an infrastructure facility;

  2. the intentional and unlawful attempted or actual perpetration of the act should be for the purpose of causing death, or serious bodily injury, or extensive destruction likely to or actually resulting in major economic loss;

<iii) the intentional and unlawful attempted or actual act is done for political, religious, social or economic aim;

  1. intentional and unlawful attempted or actual perpetration of the act is indiscriminate, and done without due regard to safety of others or property;

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  1. the intentional and unlawful attempted or actual perpetration of the act is done to influence Government, or intimidate the public or a section of the public;

  2. the participation of the Accused persons in the attempted or actual perpetration of the act above.

Section 2 of the Anti Terrorism Act, defines 'explosive or other lethal device' to mean: -

"(a) an explosive or incendiary weapon or device that is designed or has the capability to cause death, serious bodily injury or substantial material damage, or

(b) a weapon or device that is designed, or has the capability to cause death, serious bodily injury or substantial material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances or radiation or radioactive material."

On the other hand, section 1 of the Explosives Act (Cap. 298 Laws of Uganda - Revised Edn. 2000) defines 'explosives' to mean, inter alia, every substance which is used with a view to produce a practical effect by explosion. Section 1 of the Firearms Act (Cap 299, Laws of Uganda - Revised Edn. 2000), defines ammunition to include grenades, bombs and cartridges, amongst other things.

THE EVIDENCE ADDUCED FOR THE OFFENCE OF TERRORISM.

Ingredient (i):-

'Intentional and unlawful attempted or actual manufacture, delivery, discharge or detonation of explosive or lethal device, in, into, or against a place of public use, State or Government facility, a public transportation system or an infrastructure facility'.

The prosecution adduced evidence that the twin explosions in Kampala and the placement of the unexploded bomb devices in the Makindye house were the consequence of an intentional manufacture, delivery, and detonation of lethal devices in places of public use. First, was the evidence of PW1 that the decision to attack Kampala was deliberate as it was hatched in Somalia by the Al-Shabaab, whose leaders handed the explosives over to them to deliver into Uganda. In A3's confession, contained in his extrajudicial statement to PW3, he also made the same revelation, as PW1 did, that the decision to attack Uganda was made in Somalia; where the explosives used in the Kampala attacks originated from, and were ferried through Kenya.

PW2's testimony was that he took custody of the explosive devices at his Najjanakumbi rented residence, delivered some of the devices to the Kyadondo Rugby Club grounds, and from there detonated the devices by use of a phone call. A3 in his extra-judicial statement to PW3 revealed that one Hanifa did the final wiring, and connection, of the explosive devices from his (A3's) Namasuba rented residence. PW2, in his testimony, and A3, as well as A4, revealed in their extra-judicial statements, that they engaged in the identification of public places in Kampala best suited for the placement and detonation of the explosives devices. They identified the Kyadondo Rugby Club, Ethiopian Village Restaurant, and Makindye House, as the public places that were suitable for the purpose of the Uganda mission.

It is certainly evident that PW1 and PW2 were accomplices in the commission of the offence of terrorism; while A3 and A4 retracted their confessions contained in their respective extra-judicial statements. I did warn the assessors of the danger in acting on the uncorroborated accomplice evidence of PW1 and PW2, as well as the retracted extrajudicial statements of A3 and A4. However, I pointed

out to them that even in the absence of evidence in corroboration, they and Court may nevertheless place reliance on the accomplice, or retracted evidence, and convict the Accused; as long as, after a proper consideration of the accomplice or retracted evidence, they and the Court are satisfied that such evidence is in fact credible.

The various witnesses, who were either at Kyadondo Rugby Club or at Ethiopian Village Restaurant when the explosives went off, all attest to the fact that the explosives were placed in the midst of people who had gathered for the final game of the World Cup; and the number of fatalities, and injured victims, evidences this. PW17, PW18, PW41, and PW42 who saw the unexploded device at the Makindye House, testified that the device was placed in a restaurant/bar; which is definitely a public place by any account. These pieces of evidence provide the requisite corroboration of the evidence of PW2, and the retracted confessions in the extra-judicial statements of A3 and A4, that the explosive devices were deliberately placed in places of public use to ensure maximum impact.

Ingredient (ii):-

'The intentional and unlawful attempted or actual perpetration of the act should be for the purpose of causing death, or serious bodily injury, or extensive destruction likely to or actually resulting in major economic loss'.

PW2 testified that he and A3 surveyed various places in Kampala for the intended attack (e.g. Bohemia Pub Munyonyo, which however A3 rejected on grounds that few people gathered there, so attacking it would only achieve minimal impact). PW2 also testified that the Somali suicide bomber, wearing his belt and explosives, seated himself in the midst of the people gathered at the Kyadondo Rugby Club watching the final of the world cup. He (PW2) himself had also wanted to take the bomb, he had intended to detonate, in the midst of the people gathered; but he forgot with it on a table at the entrance where those entering were being subjected to a security check before entry. He was not able to shift it to the place he had intended to take it; so he left the bomb at the entrance, from where he detonated it by making a call from a distance as he had been instructed to do.

Various prosecution witnesses such as Kigundu Yususf (PW7), David Coleb Muwemba (PW9), Nakato Bonita (PW21), were revelers at the Kyadondo Rugby Club. Similarly, Muzamir Ramadhan (PW8), and Francis Mugoya (PW20) were revelers at Ethiopian Village Restaurant. They all witnessed the explosions at the two places, first hand; and gave evidence painting a sordid and heart-rending picture of total devastation, deaths, and grave injuries at each of the two places. Police officers SP Kagarura Herbert (PW10), ASP Namukasa Prossy (PW11), AIP Tagoya Bernard (PW13), SP Chemonges (PW14), D/AIP Icoot Robert (PW68), and D/SP Pius Can'ingom (PW69), who either witnessed the blasts first hand, or responded thereto immediately, testified to how nasty, gruesome, devastating, harrowing, and traumatizing the two scenes, littered with dead bodies and injured persons, were.

The Mulago Hospital pathologist (PW32), testified to having received bodies, including the head of a male person (exhibit PE 104). and amputated limbs; and from the light complexion, and curly hair, he was of the opinion that the probable origin of the person whose body this was, could be the Horn of Africa. He also examined the head of a person of dark skinned complexion (exhibit PE 105) and two legs of the same complexion. There was no torso for both heads and limbs; and he stated the cause of death to have been devastating blast injuries. D/AIP Aluma Charles (PW33) who was the mortuary attendant at

Mulago Hospital also testified to having received a total of 75 (seventy five) bodies on the night of the blasts; and witnessed several post mortem examinations by doctors on the dead bodies.

The FBI Special Agent (PW35) who examined various items (exhibits PEI85 to PE277) recovered from the Kyadondo Rugby Club, Ethiopian Village Restaurant, and Makindye House, revealed in his report (exhibit PEI 09) that he found them to be improvised explosive devices (IEDs) of similar build, functioning, and detonation impact. The manner of their construction including the materials used, and the chemical compounds used in them were strikingly similar. He compared these items with those recovered from Somalia, which he had also examined, and found them to be extensively similar in build, materials and chemical compounds used, manner of construction, fusing system, and mode of functioning.

Police officer IP Kigenyi Saad (PW41), a bomb expert, rendered the object found at the Makindye House, safe; and established that components of the object were an electric detonator, two packs of ball bearings of various designs, a powdered substance, and a mobile phone. All were contained in specially designed vests. Police officer IP Okurut Vincent (PW42) also visited the Makindye House scenes and saw what PW41 has described; which he exhibited at Katwe Police Station, together with other items recovered from that scene. Joseph Buzoya (PW17), and D/Sgt. Isaac Namwanza (PW18), who saw the explosive devices discovered at the Makindye House, attested to their lethal nature.

It is quite evident from the several pieces of evidence above that whoever placed the explosive devices in these public places, and or detonated them, knew that death or serious bodily injuries were most probable; if not inevitable. The evidence above attest to the fact that the explosives were strategically placed in the midst of the gathered public; as evidenced by the concentration and nature of the injuries suffered by the victims, and the evidence of PW17, PW18, PW41, and PW42 that the unexploded device found at Makindye House was placed in a restaurant/bar. The devices used comprised ball bearings and other explosives with capacity for serious impact. These provide the requisite corroboration of the evidence by PW2 that the explosive devices were deliberately placed in places of public use to ensure maximum and indiscriminate impact (causation of injuries and death).

Ingredient (iii):-

'The intentional and unlawful attempted or actual act is done for political, religious, social or economic aim'.

PW1 testified that Al-Shabaab was a movement of Muslims for Jihad; and further that the planned attack on Uganda was in response to Uganda's deployment of troops in Somalia to fight the Al Shabaab. A3 in his extra judicial statement to PW3 also explained that the attack ordered on Uganda was intended to compel Uganda Government to withdraw her troops from Somalia (AMISOM). PW2 testified that he was recruited by A3 who urged him to support Al-Shabaab Jihad as a religious obligation; and that the intended attack on Uganda was to punish her for deploying troops in Somalia to fight Al-Shabaab. PW78 (Director Counter Terrorism) testified that Al Shabaab had, earlier, threatened to attack Uganda; and when the Kampala blasts of 2010 took place, Al-Shabaab claimed responsibility for them.

Ingredient (iv):-

'Intentional and unlawful attempted or actual perpetration of the act is indiscriminate; and done without due regard to safety of others or property'.

PW2 testified that A3 preferred a place with many people whether Ugandans or not; and approved of Kyadondo Rugby Club because of the many people using it, as this would cause more impact. He (PW2) went with A4 and identified Ethiopian Village Restaurant and Link Discotheque Makindye. He delivered explosives in the public place in the Kyadondo Rugby Club. He testified further that the Somali suicide bomber, donned in the jacket containing explosives, sat in the midst of people at Kyadondo Rugby Club; and that both of them detonated their explosives from there. Joseph Buzoya (PW17), and Police Officers No. 19259 D/Sgt Isaac Namwanza (PW18), I.P. Kigenyi Saad (PW41), and S.P. Vincent Okurut (PW42), all testified that the bomb found in the Makindye House was placed in a bar and restaurant.

Places such as bars, restaurants and other places where people hang out are public places. They are visited by people of all nationalities, races, occupations and station in life, political beliefs, and religious affiliations; and so, the delivery or placement of explosives in such places and detonating them would most certainly be intended to, and actually, achieve the widest and most indiscriminate impact. This was clearly the intention behind the placement of the explosives at Kyadondo Rugby Club, and Ethiopian Village Restaurant where the perpetrators of the evil deed knew all categories of people would converge to watch the final game of the World Cup being staged in South Africa that time; and the Makindye House Restaurant, which was apparently a popular destination.

Ingredient (v)

'The intentional and unlawful attempted or actual perpetration of the act is done to influence Government, or intimidate the public or a section of the public'.

PWl's testimony was that the plan hatched in Somalia to attack Uganda was in response to her having deployed troops in Somalia to fight the Al-Shabaab. PW2 testified that A3 who recruited him into the mission had told him that the reason for the intended attack on Uganda was because of the deployment of Ugandan troops in Somalia, where they have fought against the Al-Shabaab. A3 himself disclosed, in his extra-judicial statement to PW3, that the blasts in Kampala were perpetrated in order to punish, and compel, Uganda to withdraw her troops from Somalia where they have been deployed and have fought against the Al-Shabaab.

Ingredient (vi): -

'Participation of each of the Accused versons'

The Accused are charged jointly with the offence of terrorism. In determining whether or not they have played any role in the crimes charged, section 19 of the Penal Code Act, which provides on the principles of criminal responsibility, and is self-explanatory, will be applicable. It provides as follows: -

"(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to he guilty of the offence and may be charged with actually committing it-

  1. every person who actually does the act or makes the omission which constitutes the offence;

  2. every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

  3. every person who aids or abets another person in committing the offence.

  1. Any person who procures another to do or omit to do any act of such nature that if he or she had done the act or made the omission the act or omission would have constituted an offence on his or her part is guilty of an offence of the same kind and is liable to the same punishment as if he or she had done the act or made the omission; and he or she may be charged with doing the act or making the omission."

DOCTRINE OF COMMON INTENTION (Joint offenders in prosecution of common purpose)

Similarly, since the Accused are charged jointly for the commission of the same offence, the doctrine of common intention has to be considered. Section 20 of the Penal Code Act provides as follows: -

When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence."

The overriding element, here, is that for the accused persons to be considered as joint offenders, there must be proof that they had formed a common intention, either before or in the course of events, to prosecute an unlawful purpose in conjunction with one another. In this regard, what is required is evidence tending to show that the individual accused person was in fact part of, and active in a group of two or more people; sharing a common purpose, with the other or others, in the execution or perpetration of the criminal enterprise.

In the case of Ismael Kisegerwa & Anor. vs Uganda; C.A. Crim. Appeal No. 6 of 1978, the Court gave an authoritative explanation on the doctrine of common intention as follows: -

"In order to make the doctrine of common intention applicable, it must be shown that the accused had shared with the actual perpetrator of the crime a common intention to pursue a specific unlawful purpose, which led to the commission of the offence. If it can be shown that the accused persons shared with one another a common intention to pursue a specific unlawful purpose, and in the prosecution of that unlawful purpose an offence was committed, the doctrine of common intention would apply irrespective of whether the offence committed was murder or manslaughter.

It is now settled that an unlawful common intention does not imply a pre-arranged plan. Common intention may be inferred from the presence of the accused persons, their actions, and the omission of any of them to disassociate himself from the assault ... it can develop in the course of events though it might not have been present from the start. ... it is immaterial whether the original common intention was lawful so long as an unlawful purpose develops in the course of events. It is also irrelevant whether the two participated in the commission of the offence. Where the doctrine of common intention applies, it is not necessary to make a finding as to who actually caused the death."

In Abdi Alli v. R (1956) 23 E.A.C.A. 573, the Court of Appeal held at p. 575 that:

"... the existence of a common intention being the sole test of joint responsibility it must be proved what the common intention was and that the common act for which the accused were to be made

responsible was acted upon in furtherance of that common intention. The presumption of common intention must not be too readily applied or pushed too far."

It is only when a court can, with some judicial certitude, hold that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result that this section [of the Penal Code] can be applied. ’’

  1. Participation of Issa Ahmed Luyima (A3)

The Prosecution adduced evidence intended to prove the participation of each of the Accused persons in the offence charged. I will not necessarily follow the chronological order of the listing of the Accused persons. Regarding Issa Ahmed Luyima (A3), Mamoud Mugisha (PW1) testified that he and others were in Somalia in Al- Shabaab camps with A3 whom he knew then by the name Baseyevu. They received military training together from there; and fought battles together in Somalia. He and A3 were identified by the Al- Shabaab leadership and sent together on a mission to plan attacks on Kampala, after they had been given special training for that purpose. He identified and rented a house at Nakulabye for the purpose; but A3 rejected it, fearing the security personnel guarding a government Minister who was resident nearby. Instead, A3 rented another house at Para Zone Namasuba.

Idris Nsubuga (PW2), for his part, testified that A3 recruited him in the scheme to carry out attacks in Kampala; and that he and A3 surveyed various locations in Kampala for the intended attacks. Out of these, A3 approved of Kyadondo Rugby Club. He also testified that A3 phoned him to wait for, and receive, items which had been brought into Uganda from Nairobi; and later, A3 and A 10 delivered a sealed green bag at his (PW2’s) home in Najjanakumbi. After this, A3 booked a room for A 10 in Naigara Hotel, using the fictitious name of Moses. A3 later showed him the items in the bag that he (A3) and A 10 had delivered to his (PW2's) Najjanakumbi house, and identified them as explosives; and then he A3 took them away to his house at Para Zone Namasuba.

He further testified that in the Namasuba house, A3 kept the two persons who later exploded the bombs at Kyadondo Club and Ethiopian Village Restaurant as suicide bombers. His further evidence was that the final wiring or connection of the explosives was done from A3's Namasuba house; and that A3 explained to him his role in the detonation of the explosives. A3 told him that he feared he would be arrested if the intended bombings took place when he was in Kampala; so, he left Kampala for Kenya the day before the bombings took place. After the bombings, A3 sent money to him (PW2) from Mombasa through Biashara Forex Bureau, with instructions to him (PW2) to remove A3’s properties from, and vacate, the Namasuba house. A3 also sent him money from Mombasa for bailing out PW1.

However, A3 vehemently refuted the allegation in the charge; and denied the allegations PW1 and PW2 made against him that he had involved himself in the acts of terrorism, with which he has been indicted, and has stood trial. He contended that the prosecution has wrongly painted him as the architect of the Kampala attacks; and he labeled PW1 as a self-confessed liar. He pointed out that there was no evidence in corroboration of PWl's evidence regarding his A3's and PWl's alleged exploits under the Al-Shabaab in Somalia together with other persons. He claimed that he had once, spent a night at PW2's home; so, this could possibly explain the FBI's finding of the presence

of his DNA on the mattress cover recovered from PW2' home. He denied that he ever booked for accommodation at Naigara Hotel.

He also denied that he has ever gone by the name Moses Huku; and challenged the prosecution for not retrieving and producing in evidence the e-mail communication, which PW2 claimed the two of them had exchanged in the aftermath of the Kampala blasts, while using one password. He however admitted that he knew PW2; and also conceded that he was arrested from Mombasa. PW1 and PW2 were clearly accomplices in the crime of terrorism with which Al to A12 herein have been indicted. Section 132 of the Evidence Act (Cap. 6 Laws of Uganda, 2000 Edn.) provides as follows:-

"An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."

The import of this provision is that Court can, acting solely on the evidence of an accomplice, convict an accused person; even in the absence of evidence corroborating that of the accomplice, as long as the Court warns itself and the assessors of the danger in acting or relying on the uncorroborated evidence of an accomplice. In the case of Rasikial Jamnadas Davda vs Republic [1965] E.A. 201, at p. 2017, the Court laid down the rule as to who an accomplice is, as follows: -

"We think that the question whether Fatehali was an accomplice can shortly be determined by reference to the decision in the well known case of Davies vs Director of Public Prosecutions [1954] 2 W.L.R. 343; [1954] l All E.R. 507; which has been applied by this Court in numerous cases ever since it was decided. In that case the House of Lords defined the word 'accomplice', and in the opinion of Lord

Simonds, L.C., the natural and primary meaning of the term covers witnesses called for the prosecution who are:

'participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies), or persons committing, procuring or aiding and abetting (in the case of misdemeanours)'.

Having defined the term 'accomplice', the Lord Chancellor posed the question, who is to decide or how is it to be decided, whether a particular witness was 'a participes criminis'? he answered the question thus ([1954] 2 W.L.R. at p. 353):

'In many or most cases this question answers itself, or, to be more exact is answered by the witness in question himself, by confessing to participation, by pleading guilty to it, or by being

convicted of it and a judge should direct [the jury] that if

they consider, on the evidence, that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated, though it is competent for them to do so if, after that warning, they still think fit to do so."'

In The King vs Baskerville [1916] 2 K.B. 658, the Court held that there is no doubt the uncorroborated evidence of an accomplice is admissible in law. In Nassolo vs Uganda [2003] l E.A. 177, the Court restated the position that a judge must warn himself and the assessors of the dangers in relying on the uncorroborated evidence of an accomplice; but having done that, the Court may convict if satisfied of the strength of the uncorroborated evidence. In the instant case before me, both PW1 and PW2 admitted in their sworn testimonies that they participated in the commission of the offence of terrorism at different stages. Indeed, when he was indicted of this offence, I convicted PW2

on his own plea of guilty when he confessed to having played a central role in perpetrating the crime. He testified at the trial while serving a twenty-five year sentence I had earlier imposed on him.

He did not seek to exculpate himself in any way, from any wrongdoing in the commission of the offence. PW1 was only charged with the offence of conspiracy to commit the offence of terrorism. However, at the trial, after having served his sentence, he still fully maintained his culpability in the offence of terrorism, which he had admitted in his extra-judicial statement; and this, notwithstanding that he had not been charged with that offence but instead of the lesser offence of conspiracy. I believe the testimonies of PW1 and PW2 in this regard; owing to their consistence right from their respective extra-judicial statements up to their sworn testimonies in Court. Furthermore, they have not at all sought to exculpate themselves from participation in the commission of the offence of terrorism.

To the contrary, they both fully incriminated themselves as participants in the offence; and in doing so, they had nothing to gain personally. If anything, PW2 consistently manifested his remorse and expressed his plea for forgiveness; as is evidenced by his confession in his extra-judicial statement, his plea of guilt at the commencement of the trial, and when he appeared as a prosecution witness at the trial. He firmly expressed his wish to see that justice is done to the victims of his most regrettable acts; and in this regard, from his demeanour, I found him to be quite genuine and persuasive. Nevertheless, notwithstanding that I have found both PW1 and PW2 to be credible witnesses, they are, without doubt, accomplices in the crimes for which Al to A12 have been indicted; and so, I am bound to treat their evidence with the greatest caution, as is required of me.

I find useful guidance for this, in the case of Uganda vs Khimchand Kalidas Shah & 2 Ors [1966] E.A. 30, where the trial Magistrate had first believed the witness; then looked for corroboration of the evidence. The High Court, on appeal, held that the trial Magistrate had 'put the cart before the horse' by believing the witness before any corroboration. However, on a second appeal, the Court disagreed with the view expressed by the High Court; and stated at p. 31 as follows: -

"With respect, we cannot agree; and we think that there was nothing wrong in the learned Magistrate's approach. The absence of corroboration or the inadequacy of the corroboration of the evidence of an accomplice is not of itself a reason for disbelieving that evidence but merely precludes the Court (save in exceptional

circumstances) from basing a conviction on it When [Court]

accepts the evidence of an accomplice, it then, save as aforesaid, looks at the other evidence which it has accepted to see if it affords corroboration of the evidence of the accomplice."

At p. 34, the Court of Appeal added as follows: -

"Evidence to be corroborative must be independent and it must implicate or tend to implicate the individual accused in the offence. This is a matter of fact in each case. It seems to us that when one is dealing with a small private company, a family company, evidence that stolen property was found on its premises must tend to implicate the directors in the alleged offence of receiving and retaining. It could not, of course, of itself be enough to sustain a conviction but we think it is enough to corroborate accomplice evidence which has been found credible."

In the case of Kibale Ishma vs Uganda, Cr. A. No. 21 of 1998, the Supreme Court of Uganda followed the principles enunciated above, and defined corroborative evidence to mean independent evidence, which affects the accused person by connecting, or tending to connect, him with the crime; and confirming in some material particulars, not only the evidence that the crime has been committed, but also, that the accused person committed it.

In the Indian case of Ramashaw vs The State of Rajasthan, AIR [1959] SC 54, which the prosecution cited to me, the Court clarified on corroboration; and paraphrased, it states as follows: -

  1. It is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain a conviction.

  2. What is required is some additional evidence rendering it probable that the story of the accomplice (or complainant) is true; and that it is reasonably safe to act on it.

  3. Corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with crime.

In the case of Susan Kigula & Anor vs Uganda, S.C.Cr.A. No. 1 of 2004, the Court held that: -

"Corroboration in part corroborates the whole. Therefore, if a material part of the child's evidence is corroborated, not only may that part of his evidence be relied upon but also that part which is not corroborated; the corroboration of a material part being a guarantee of the truth of this evidence as a whole."

In the instant case before me, regarding the participation of A3 in the commission of the crime of terrorism, I have subjected the testimonies of PW1 and PW2, as accomplices, to very close scrutiny as shown above; and found them both credible. Even without any evidence in corroboration, I am persuaded to act on their evidence regarding the participation of A3 in the commission of the offence of terrorism for which he has been indicted; despite A3's vehement denial of any participation. However, there is a huge corpus of overwhelming evidence adduced at the trial, as is shown below, corroborating the evidence adduced by PW1 and PW2, of A3's guilt.

Corroboration of evidence adduced by PW1 and PW2 against A3.

Police Officers Sgt. Christopher Oguso (PW59) and AIGP John Ndungutse Ngaruye (PW78) both testified that upon the arrest of Al, they found him with a phone in whose phone book was saved telephone No. 254732812681 as the contact for 'Basa'; whom Al identified to the Police Officers as A3. He (Al) informed the Police Officers that A3 also had another telephone whose No. was 254719706497. It is the law that where information given to the Police in the course of their investigations leads them to the discovery of admissible evidence, then such information itself has evidential value in accordance with the provision of section 29 of the Evidence Act (Cap. 6 Laws of Uganda, 2000 Edn.), which states as follows: -

"Notwithstanding sections 23 and 24, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, so much of that information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

An examination of the Call Data Record (CDR) for telephone No. 254732812681, which Al informed the police as belonging to A3, revealed that on the 10th July 2010, at 17.10.10 hrs (5:10:10 p.m.), and 17:11:46 hrs (5:11:46 p.m.) it made a call each to Somalian tel. Nos. 252615624981 and 25250460706, from the Namasuba geo-location. The CDR for telephone No. 254732812681 also showed that it called All, and a Ugandan telephone No. 256772528289, which on investigation PW31 established to belong to one Aidah Nabwami. PW31 testified that when he traced Aidah Nabwami, she disclosed to him that the tel. Nos. 254732812681 and 2547199706497 belonged to her brother in law, one Issa Luyima who was living in Mombasa. This led to the arrest of A3 from Mombasa by Police Officer Superintendent of Police (S.P.) Zackaria Kiplagat Bitok (PW51). This arrest is confirmed by A3 himself.

PW31 also established that the two Kenyan tel. Nos. 254732812681 and 2547199706497, which Aidah Nabwami had disclosed as belonging to A3 had, while roaming in Uganda, shared a phone handset (exhibit PE299) having IMEI (Serial No.) 35832403756470, with the Ugandan tel. No. 256772528289 which belonged to Aidah Nabwami. This handset (exhibit PE299) was recovered from Aidah Nabwami. Since the CDRs for the tel. Nos. 254732812681 (exhibit PE 145) and 2547199706497 (exhibit PE 137) show that they made calls from the geo-location of Namasuba, they bolster the evidence of Juliet Kato (PW12) who was A3's landlady for the Namasuba rented house, and that of Christine Ahumuza (PW15) who was A3's neighbour at the Namasuba rented house, as corroborative of the evidence adduced by PW1 and PW2, that indeed A3 had rented a house in Namasuba.

The disclosure by the CDR of tel. No. 254732812681 that it called tel. No. 252615624981 of Somalia corroborates PWl's testimony that A3 had dealings with that country. Furthermore, the revelation by the CDR that the call to Somalia was made on the 10th July, 2010 at 17:11:46 hrs (which is 5:11 p.m. of the eve of the Kampala blasts,) compels an irresistible inference that most probably, the call was with regard to the impending Kampala bomb blasts; which A3 and PW1 had been assigned from Somalia to carry out in Uganda. This is strong circumstantial evidence, which is corroborative of the evidence by PW1 and PW2 that A3 had a central and lead role in the perpetration of the terrorist acts that were visited on Kampala on the 11th July 2010; and for which A3 and others are now standing trial in this Court.

The evidence that A3 was arrested from Mombasa, which A3 conceded to, afforded corroboration of the information obtained from Aidah Nabwami by the Police that A3 (her brother in law), who she said was living in Mombasa at the time she gave the information, was the person who had used her phone hand-set in Uganda. Similarly, this arrest corroborated the evidence by PW2 that just before the Kampala blasts, A3 left for Nairobi; and thereafter sent him money using Biashara Forex Bureau co carry out certain specific instructions. The evidence that Al had saved telephone No. 254732812681 in his phone book as the contact for Basa, whom he identified to the Police Officers as A3, corroborated the evidence by PW1 that while in Somalia he knew A3 as Basayevu. For sure, 'Basa' was a short form for Basayevu.

Juliet Kato (PW12) who was A3's Namasuba landlady, and Christine Ahumuza (PW15) who was a tenant of PW12 at Namasuba, and A3's Namasuba neighbour, both testified that they knew A3 as Moses; and that A3, left the rented Namasuba house prematurely, and without giving notice to the landlady. This of course corroborates the evidence by PW2 that A3, calling himself Moses, booked A 10 for the night at the Naigara Hotel; and that A3, referring to himself as Moses Huku, remitted monies to him (PW2) from Mombasa. The evidence by Salat Mohammed Ahmed (PW52), of Biashara Forex Bureau, Mombasa, is that from the Mombasa branch of the Forex Bureau, one Moses Huku had remitted monies, on a number of occasions, to one Idris Nsubuga in Kampala; as is shown by the record of the remittances (exhibit PE 128). This also corroborated the evidence of PW2 in that regard.

Further corroboration of the evidence of PW2 about the remittances of money to him by A3, is provided by Ismail Kizito (PW23), an accountant at the Kampala branch of Biashara Forex Bureau. He testified that from the Kampala branch of the Forex Bureau, one Idriss Nsubuga (PW2) did collect monies sent to him (PW2) by one Moses Huku from the Mombasa branch of the Forex Bureau; as evidenced by exhibits PE100 (a), (b), and (c). The other evidence corroborative of that of PW2, that A3 went by the name of Moses, is that of Police Officer No. 19345 D/Sgt Okaro Ronald (PW30) who, in the course of his investigations, saw vouchers at Biashara Forex Bureau in Kampala showing money remittances from Moses Huku to Idris Nsubuga between 16th July 2010 and 29th July 2010; which he also verified with PW52 at Biashara Forex Bureau, Mombasa branch.

The evidence adduced by these witnesses, Juliet Kato (PW12) who was A3's Namasuba landlady, and Christine Ahumuza (PW15) who was A3's neighbour at Namasuba, as well as that of the handwriting expert (PW27), do not only corroborate PW2's evidence that indeed A3 operated under the name of Moses in the execution of the Kampala bombing mission and thereafter, as has been pointed out above. They also corroborate PW2's evidence that it was A3, going under the name of Moses Huku, who remitted monies to him (PW2) on a number of occasions from Mombasa after the Kampala blasts, for him to collect from Biashara Forex Bureau, Kampala, and disburse them in accordance with the specific instructions A3 had given him; such as collecting A3's properties from, and vacating, the Namasuba house.

The evidence from the computer records at Malaba Immigration station, shows that A 10 crossed to Uganda through Malaba on 9th May 2010; and this is admitted by A 10. It was seized upon by the defence to controvert the evidence by PW1 that he travelled with A 10 from Nairobi up to Malaba at the end of April 2010; from where, he (PW1) was arrested by Kenyan authorities. Defence Counsel urged Court to find that PW1 had lied to Court in this regard, as from the immigration record the two must have travelled to Malaba on different dates. I have given this matter deep consideration; but I am unable to attach much importance to the disparity between the dates given by PW1 and A 10 for coming to Malaba from Nairobi en route to Uganda.

First, PW1 in his testimony never referred to any document regarding his coming to Malaba from Nairobi. It was more of a recollection of the date he came to, and was arrested at, Malaba. On the other hand, A10 had the benefit of his passport, as well as the record at the Ugandan Immigration station at Malaba, from which he established the specific date he crossed into Uganda. Be it as it may, what is of importance here is that both PW1 and A 10 have given a date before the Kampala bomb blasts as the date of their coming to Uganda from Kenya through Malaba. The precise date as to when they came to Malaba together, or when A 10 came alone as he maintains, is not that crucial for determining the truth or otherwise of their respective assertion.

In Karsan Velji vs R. [1957] E.A. 702, the appellant had made a statement to the immigration officer about the time certain events had taken place. On the importance to attach to the dates the crime is alleged to have taken place, the Court stated at p. 705 as follows: -

"It is not, of course necessary to lay the date of an offence with precision, unless it is of the essence of the offence. R vs Dossi 13 Cr. App. R. 158; Archibold (33rd Edn.) 49; Kamau s/o Gikera and Others vs R. (1955) 22 E.A.C.A. 539."

The admission by A 10 that he crossed into Uganda from Malaba on the 9th May, which is early May, despite his denial that he travelled together with PW1, corroborates that of PW1 that he and A 10 travelled together up to Malaba at the end of April; before he (PW1) was arrested by Kenyan authorities. Otherwise how, on earth, could PW1 have known that A 10 - whom he would not have known - had travelled to Uganda, and through Malaba, around that time? Furthermore, the admission by A 10 about his crossing into Uganda also corroborates that of PW2 that after A3 called him to expect a visitor he (A3) came to his (PW2's) house at Najjanakumbi, with A 10 and delivered a bag, which later he (A3) showed him was containing explosives.

The handwriting expert (PW27) who examined a known sample of the handwriting of A3, against the handwriting in the Guest Registration book of Naigara Hotel (exhibit PE279) made on the 9th May 2010, by one Moses, concluded in his report (exhibit PE 102) that the two samples were written by the same person. In the case of Hassan Salum vs Republic [1964] E.A. 126, the handwriting expert had in his evidence before the trial Magistrate, stated that he had 'no doubt whatever' that the 'Question handwriting' was that of the appellant. The trial Magistrate treated the expert evidence as an opinion only; but nonetheless convicted the appellant based on it. On appeal, Spry J (as he then was) explained at p. 127 as follows: -

"The only reported case which I have discovered which is of assistance in the present case is Wakefield vs Lincoln (Bishop) (1921) 90 L.J.P.C. 174 in which Lord Birkenhead observed:

'The expert called for the prosecution gave his evidence with great candour. "It is not possible,' he says, 'to say definitely that anybody wrote a particular thing. All you can do is to point out the similarities and draw conclusions from them'. This is the manner in which expert evidence on matters of this kind ought to be presented to the Court, who have to make up their minds, with such assistance as can be furnished to them by those who have made a study of such matters, whether a particular writing is to be assigned to a particular person'.

I would refer also to a passage from the summing up of Lord Hewart in the trial of William Henry Podmore (I quote from the FAMOUS TRIALS SERIES as the only source available to me), when he said:

'Let me say a word about hand writing experts A

handwriting expert is not a person who tells you this is the handwriting of such and such a man. He is a person who, habituated to the examination of handwriting, practised in the task of making minute examination of handwriting, directs the attention of others to things which he suggests are similarities. That, and no more than that, is his legitimate province.'

I think the true answer was given by the witness in the Bishop of Lincoln case that 'it is not possible to say definitely that anybody wrote a particular thing'. I think an expert can properly say, in an appropriate case, that he does not believe that a particular writing was by a particular person. On the positive side, however, the most he could ever say is that two writings are so similar as to be indistinguishable and he could, of course, comment on unusual features which make similarity the more remarkable. But that falls far short of saving that they were written by the same hand.

There is a presumption that no two persons have identical

Fingerprints, but there is no presumption that no two persons have similar handwritings." (Emphasis added).

The handwriting expert (PW27) definitely exceeded his legitimate limits in the instant case before me when he stated with certitude that the two handwriting samples he examined were made by the same person. Upon my own scrutiny and comparison of the two samples, I have come to the irresistible conclusion that they are indeed markedly and almost indistinguishably similar. This is circumstantial evidence; but because PW2 testified, that he saw A3 write in the booking Register, the evidence is not entirely circumstantial. In Barland Singh v. Reginam (1954) 21 E.A.C.A. 209, at p. 211, the Court held that this type of circumstantial evidence, though not entirely inconsistent with innocence, may corroborate other evidence; as it is only where circumstantial evidence stands alone, that it must be inconsistent with any other hypothesis other than guilt, and there must be no co­existing circumstance that would weaken or altogether negate it.

The 'other evidence' that goes alongside this circumstantial evidence is in the testimony by PW2 that A3 personally booked A 10 in the Naigara Hotel; and that A3 used the name Moses when remitting money to PW2 through Biashara Forex Bureau. The person who booked at the Naigara Hotel Guest Register book for the night in issue, and whose writing is similar with the sample known to belong to A3, signed therein as Moses. This circumstantial evidence, though not entirely inconsistent with innocence, suffices to prove the guilt of A3, without the need to show the absence of a negating co-existing circumstance. In this regard therefore, the report by PW 27 (exhibit PE I02). Except for his excessive opinion, corroborates the evidence by PW2 that A3 booked A 10 into Naigara Hotel for one night.

'Witness I' (PW39), an FBI special Agent, tendered in evidence forensic examination findings by one FBI scientist known as Richard Striker, that A3’s DNA was predominantly present in the mattress cover obtained from Ugandan officials. Police Officers S.P Vincent Okurut (PW42) who made the certificate of the search at PW2's residence (exhibit PE 117). and D/AIP Icoot Robert (PW68) and D/SP Pius Caningom (PW69) all testified that from there, they had recovered a mattress as well as other items they listed in the search certificate (exhibit PEI 17). This is the evidence which A3 seized upon to support his contention that the discovery of his DNA in the mattress cover, which was recovered from PW2's home, could possibly be explained by the fact that he had spent a night at PW2's house; albeit only once.

However, the FBI report of the forensic examination also showed the finding of traces of explosives on the mattress cover; thus corroborating PW2’s evidence that he collected the mattress from A3’s Namasuba residence where A3 had kept the explosives, and they were exposed for final connections and wiring, before their delivery to the three sites for detonation. On the other hand, I view A3's assertion that he spent a night at PW2’s residence once, when they were from a wedding party, with incredulity. This is owing to the fact that at the time, his own brother Hassan Haruna Luyima (A4) lived at Namasuba. His choice of PW2's home, and not his own brother's home, was rather strange; since he has, in denying that he recruited PW2 into any terrorist activities, contended that he only knew PW2 casually.

The contention by A3 that he in fact spent a night at PW2's home at Najjanakumbi, which he claims could explain the presence of his DNA on the cover of the mattress recovered there from, may in fact achieve an unintended adverse consequence if it is believed. It would instead mean that he and PW2 were not mere acquaintances, as he would want

Court to believe; but rather that they enjoyed a close relationship. This would then corroborate PW2’s evidence that with regard to the Kampala mission, A3 recruited him and made him his (A3's) confidante in the execution of the terrorist mission in Kampala; and to carry out certain instructions after the July 2010 twin blasts, as has been shown above in his testimony. Accordingly then, A3 should not be allowed to eat his bread and still hope to have it at the same time.

A3 made an extra-judicial statement to His Worship Francis Kobusheshe (PW3) on the 10th of August 2010; and it was admitted in evidence as exhibit PE94. In it, A3 confessed that he joined the Al- Shabaab in Somalia in 2009. He disclosed that he underwent military training with the Al-Shabaab; and then fought together with them in Mogadishu and Kismayu against the forces of the Transitional Federal Government (TFG), which were being supported by the forces of the African Union Mission in Somalia (AMISOM), which had a Ugandan Peoples' Defence Forces (UPDF) contingent as part of it. He revealed that the leadership of Al-Shabaab chose him to be part of a mission to come to Uganda and execute a plan to carry out an attack on her from within; in order to compel her to withdraw her troops from Somalia.

Pursuant to this, he came to Uganda in January 2010 to carry out surveillance for the best places to execute the mission; and in May 2010, he rented a house in Namasuba for the mission. He disclosed further therein that he recruited PW2, and his brother A4 to participate in the mission. He collected explosives from National Theatre Kampala, delivered by A 10 in a Toyota Land Cruiser, for the mission; and took them to Namasuba. He also received cell members, who included one Kaka, and Kakasule. After a week, Kakasule left for Kenya and in June returned with a Somali; and they lived in the Namasuba safe house awaiting the execution of the mission. He also disclosed that in June, one Hanif carried out final connections and wiring of the explosives from the Namasuba safe house.

Together with Hanif and others, he surveyed locations in Kampala for the attacks; and identified Kyadondo Rugby Club, Ethiopian Village Restaurant, and Makindye House as suitable venues. He further revealed that he assigned A4 to take Kakasule the suicide bomber to Ethiopian Village Restaurant, and also to take a vest with explosives to Makindye House and place it there. He also disclosed that he assigned PW2 to take the Somali boy (suicide bomber) to Kyadondo Rugby Club. The final assignment he gave to A4 and PW2 was to evacuate his Namasuba house upon the planned bomb blasts having taken place. After all this, he then left for Nairobi Kenya the day before the planned blasts; to avoid being arrested. He was, however, arrested from Mombasa, by Kenya Police; and was deported to Uganda.

Her Worship Agnes Nabafu (PW4) recorded the extra-judicial statement of A4; who revealed that he is brother to A3 and A13. He disclosed that two weeks before the Kampala July blasts 2010, A3 recruited him into the mission to attack Kampala; and briefed him on what he (A3) wanted him (A4) to do. He accompanied A3 and PW2 to carry out the surveillance on the Makindye House, and A3 showed him Ethiopian Village Restaurant also, where A3 wanted him to take the explosives to. A3 then took him to Namasuba house, and introduced him as Abdul Karim to two people he found staying there; and he (A3) told him that these two (one of whom was a Somali looking person and the other a dark coloured person) were the persons he would be staying with at the Namasuba house.

After this, A3 showed him the bags he (A4) was to take and drop, one each, at Makindye House and Ethiopian Village Restaurant respectively. He also showed him the jackets, which was to be used in

47

the mission. He and A3 then came to town; where from, A3 gave him money and instructed him to buy two used phones for the mission. He bought the phones as he had been instructed; and then went back to the Namasuba safe house. On the 11th July 2010, the explosives were assembled; after which he left with his partner for Kabalagala, while PW2 also went with his partner for their selected scene. He dropped his partner (the suicide bomber) at Kabalagala, then went to Makindye House and placed a bag there and then left on a motorcycle.

However, at the trial, both A3, and A4, retracted their respective extrajudicial statements. I then had to conduct a trial within a trial in each case; at the end of which I made a finding that the judicial officer (PW3) who recorded A3's statement, satisfactorily complied with the procedure required for recording such extra-judicial statement. The assertion by A3 that he confessed in his statement out of fear of the ramifications that would result, if he did not do as he had been told to do, does not convince me. In fact, there is absolutely no evidence that at the time he was giving his statement to PW3, whatever threat that had been exacted on him, if any, still persisted or bore on him up to that time. To the contrary, his statement is a detailed narrative. It brings out material particulars, leaving me in no doubt that it was voluntarily made; and I believe it must be true.

As for A4, his extra-judicial statement was admittedly, in certain respects, recorded by PW4 in a manner not compliant with the procedure laid down for recording a charge in such a statement. However, this did not occasion any injustice to A4, because although PW4 did not record any caution as having been administered to him, A4 himself testified that he accepted the charges against him, though out of fear; thereby disclosing that he was in fact informed of the charges against him. At the trial, A4 retracted the confession he had made to PW4; and shed tears as he narrated that from detention, he was forced to eat pork, which is gravely offensive to his religious belief. He stated that he successfully resisted a concerted attempt to sodomize him; by kicking one of his assailants down. However, one of them seized his genitals; which paralyzed and overpowered him.

Due to the resulting pain, he accepted the charges against him. He claims that at Nakawa Court, from where he gave the extra-judicial statement, he was hooded, was in pain, dusty, and hungry. I fail to understand why, apparently without a fight, A4 succumbed to eating pork, which he knows to be an abomination; but on the other hand, he vigorously fought and overcame the attempt to sodomize him. I find his assertion that police officer Godi (now deceased) sat next to the Magistrate when he gave his extra-judicial statement to the Magistrate (PW4), and kept on prompting him on what to state to the Magistrate, rather wild and outrageous. There might have been some element or possibility of truth in the assertion that Godi intervened in the process, if a police officer had recorded the cautioned statement.

With regard to the instant extra-judicial statement, which A4 now retracts, I would have probably believed him if the non-compliance by the judicial officer were merely procedural; such as forgetting to have A4 sign it after the caution had been administered to him. Certainly, any act of condoning an intervention in, or blatant interference with, the statement making process, by a third party to the statement making process, would be gravely outrageous, and incurable. However, a procedural non-compliance with the statement making process, such as forgetting to have a suspect sign to certify that the charge or caution was indeed administered to him or her, would not necessarily result in the statement being held to be invalid for non­compliance with the rule laid down for recording such statement.

In their respective extra-judicial statements, which they have each retracted, but I have admitted in evidence as having been voluntarily made by each of them, A3 and A4 have made confessions amounting to 'a full admission of their individual guilt' in the commission of the offence charged. In it, they do not only fully, and unreservedly, incriminate themselves as being guilty of committing the offence for which they have jointly been charged; but they both also implicate other persons jointly facing the instant trial with them, as having participated in the commission of the offence. Section 27 of the Evidence Act, provides as follows:-

"When more persons than one are being tried jointly for the same offence, and a confession made by one of those persons affecting himself or herself and some other of those persons is proved, the Court may take into consideration such confession as against that other person as well as against the person who makes the confession."

I find it imperative, for the determination of the instant matter before me, to review some of the salient authorities that have dealt with retracted confession statements; as these will guide me on how to deal with the retracted extrajudicial statements made by A3 and A4. In Ezra Kyabanamaizi & Ors vs R. [1962] E.A. 309, none of the appellants had given evidence on oath; but they had, each, only made unsworn confession statements. The Court distinguished between a sworn and an unsworn statement, at p. 314, as follows: -

"Had they done so at the trial, their evidence on oath could properly have been taken into account as accomplice evidence. Their statements not on oath, however, are not 'accomplice evidence'. The authority for taking such statements into account at all against the co-accused is s. 28 of the Evidence Ordinance, which is identical with section 30 of the Indian Evidence Act... reads as follows:

'28. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.'

At best such statements can only be 'taken into consideration' against a co-accused and used only to supplement an otherwise substantial case against an accused person: Muthige vs. R. (1954) 21 E.A.C.A. 267. They can never be the basis for a conviction, as, on a proper direction, accomplice evidence can. Further, a statement cannot be considered at all against a co-accused unless there has been a full admission of guilt in the statement. We think the law is correctly stated in the following passage from SARKAR ON EVIDENCE (10th Edn.) at p. 295:

'It is abundantly clear from the relevant cases on the point, that in order that the statement of an accused may be taken into consideration against his co-accused tried jointly for the same offence, it must implicate himself substantially to the same extent as others, and must expose himself to the same risk along with the fellow prisoners: otherwise the confession cannot be taken into consideration under this section. If the statement implicates him as fully as the others or in g greater degree, it is then only that it can afford a sort of safeguard for truth.

If the statement criminates the maker partially or in a lesser degree, or throws the main burden of the blame on others, it cannot be used against his co-accused. Statements however criminating, made in self-exculpation or in mitigation of guilt, are self-serving statements and are not admissible. A statement falling short of actual admission of guilt would be a mere inculpatory admission and not a confession at all within the meaning of s. 30. All that section requires is that it must be a 'confession' and that the statement of the confessing prisoner must implicate himself substantially to the same extent as it implicates the others.

It appears that the real test is not whether the confessing accused ascribes to himself a major or minor part in the crime, but whether when implicating his co-accused he gives g full and true account of the crime and unreservedly confesses his own share of the guilt, i.e.. implicates him as fully and substantially as his co­accused. It may be that the part assigned to him was not a leading or major one; but in any case, there must be a confession to the fullest extent of whatever part he took in the commission of the crime. It is in this sense, that the confession must affect them both equally.

It is only a statement of this kind that can be said to implicate the confessing accused 'substantially to the same extent' as it implicates the others. When there is no full and complete confession of his own guilt and the part taken by him in the crime, but an embroidered story spun out with the object of clearing himself or reducing his own guilt at the expense of others, it is nothing but an explanation of an exculpatory nature or a self-serving statement."'

In their respective confession statements, A3 and A4 fully and unreservedly admitted their own individual guilt; as well as pointing out the role of each of the co-accused they have named therein, in perpetrating the crime they are jointly standing trial for. They were, before making their respective confessions, fully aware of the risk attendant to doing so; but, nonetheless, proceeded to lay bare their individual souls in disclosing their own participation in the commission of the crime for which they have been charged, and as well disclosing the participation of the co-accused they named therein. I find that each of them made their confessions voluntarily; hence, their confessions must be true. Accordingly, I take their confessions into consideration as against them individually, and also against each of the implicated co-accused, in accordance with the provision of section 27 of the Evidence Act, cited above.

However, I am quite mindful of the fact that each of the confessions I am taking into consideration can never be the basis for a conviction; as, on a proper direction, accomplice evidence can be. I can only find out if, from other independent evidence proved in Court, either of the confessions supplements a substantial case existing against the individual confessor or the co-accused persons named therein. I find that A3's confession that he joined the Al-Shabaab in Somalia, fought alongside them, and was tasked with others to carry out a mission to attack Uganda, pursuant to which he came to Uganda and rented a safe house in Namasuba, supplements and lends assurance to the evidence adduced by PW1 at the trial, regarding the participation of A3, in this regard.

A3's detailed narrative in his confession on how he recruited PW2 and A4 into the mission, and deployed them in the execution of the Kampala attacks, supplements the evidence by PW2, and the confession by A4, on how A3 recruited and deployed them for that purpose. It also supplements the evidence by PW2 that A3 delivered a bag containing explosives to him at Najjanakumbi. A3's confession also supplements that of Juliet Kato (PW12) who was A3's Namasuba landlady, and Christine Ahumuza (PW15) who was a tenant of PW12, and A3's Namasuba neighbour. Both of them testified that they knew A3 as Moses; and that A3 left the rented Namasuba house prematurely, and without giving notice to the landlady. A3's confession also supplements the evidence by PW2, and the confession by A4, that he (A3) kept suicide bombers in the Namasuba safe house.

This confession by A3 also supplements the evidence by PW2, and the confession by A4, that after instructing them to evacuate his properties from the Namasuba house, he (A3) left Kampala for Nairobi the day before the Kampala twin blasts. It also supplements the evidence by PW31, PW59, and PW78 that the Kenyan tel. Nos. attributed to A3 by Al had, while roaming in Uganda, mainly operated from the Namasuba geo-location; from where one of them was shown to have called Somalia. His confession that he sent money to PW2 from Mombasa, supplements the evidence by PW2 that A3, using the name Moses Huku, remitted funds to him from Mombasa; and also the evidence by the Mombasa manager of Biashara Forex Bureau (PW52), and the Kampala branch Accountant for the Forex Bureau (PW23), regarding the money transfers made by Moses Huku from Mombasa.

Finally, his confession that he was arrested from Mombasa is corroborated by his admission in his unsworn statement at the trial. Thus, his confession lends assurance to the evidence by PW2, and the confession by A4, that he (A3) left Kampala for Kenya the day before the Kampala blasts, due to his fear that, owing to his record with the police, they would arrest him if the blasts took place when he was in Kampala. The confession by A4 on his dealings with A3, supplements and lends assurance to the evidence by PW12 (the Namasuba landlady) that A3 rented her house at Pala Zone Namasuba; but left prematurely, and without giving her any notice. It also supplements that of PW2 that it was in this house that A3 kept the explosives, as well as the cell

members including the suicide bombers who were later deployed at Kyadondo Rugby Club and Ethiopian Village Restaurant.

A4's confession equally supplements PW2's evidence on A3's role in the surveillance of various places in Kampala to identify those suitable for the mission; as well as the deployments, to specific places, of PW2 and A4, together with the respective suicide bombers assigned to each of them, with the explosives, for the execution of the mission. This confession also supplements that of A3 himself, which details his (A3's) role, together with A4 and PW2, in the execution of the Kampala attacks; as has been shown above by other independent evidence. A4's confession, further still, supplements the evidence by PW2 that he removed A3's mattress and other items from A3's rented Namasuba house, and took them to his (PW2's) house in Najjanakumbi, pursuant to A3's instructions before he left for Nairobi.

True, A3 first kept the explosives at PW2's Najjanakumbi; but later relocated them to his (A3's) Namasuba house; where they were finally connected and wired from. This therefore serves to negate the contention by A3 in his unsworn statement at the trial that the fact that he had once spent a night at PW2's residence, after attending a party together with PW2, explains the discovery by the FBI of a predominant presence of his DNA on the mattress cover recovered from PW2's house at Najjanakumbi. The confession by A4 also supplements PW2's testimony that after A3 had issued the instructions for the final execution of the mission, he left Kampala for Nairobi one day before the impending bomb blasts were to occur.

It is manifest from the confessions made by A3 and A4, that they are both accomplices in the crime for which they have jointly stood trial with the other accused persons. However, both A3 and A4 did not make their confessions on oath; so it would be improper and

inadvisable to treat them in the category of the other accomplices, such as PW1 and PW2, who testified on oath about their participation in the crime. Although I believed the accomplice evidence of PW1 and PW2, I preferred to look for possible corroborative evidence to augment them; owing to the knowledge that their evidence was of the weakest type in law. In like manner, although the confessions by A3 and A4 would not form the basis of a conviction, but instead serve to supplement and lend assurance to some substantial evidence adduced, I am permitted to look for corroboration of the confessions.

In this I am bolstered by the case of Girisomu Bakaye and Others vs Uganda [1965] E.A. 621, where the trial judge had failed to direct the assessors on how to treat a retracted confession statement; but had, nevertheless, convicted the appellants. On appeal, the Court stated, at p. 622, that: -

"Although there is no rule of law which requires corroboration of a retracted statement, it is a salutary rule of practice to seek such corroboration, and a Court should direct itself and the assessors to that effect, and that great caution should be exercised before relying on an uncorroborated retracted statement. Where no such direction has been given, this Court will not normally give effect to an uncorroborated retracted statement.

In this case ... the trial judge did find corroboration, so far as the first and second appellants are concerned, from the fact that they subsequently led the police to the scene of the crime and showed where the deceased had been killed and thrown into the water. ... we agree that the retracted confession statements of the first and second appellants were in fact corroborated."

In the matter before me, prosecution adduced evidence that A4 led the police to his Namasuba home, and identified for them the pit latrine where he had thrown the phones he had used in the execution of the bombing mission. The recovery of these phones from the latrine indeed corroborated A4's retracted confession that he did participate in the Kampala bombing mission. In the Ezera Kyabanamaizi & Ors vs R. case (supra), the Court made a distinction between a confession made on oath and one made not on oath; and with regard to the confessions the appellants had made, not on oath, the Court stated, at p. 314, as follows: -

"Had they done so at the trial their evidence on oath could properly have been taken into account as accomplice evidence. Their statements not on oath, however, are not 'accomplice evidence'.

At p. 318, the Court further stated as follows: -

"This Court has held that a retracted statement, whether a confession or not, may in a proper case amount to a corroboration of accomplice evidence (Bassam and Another vs. R. [1961] E.A. 521 (C.A.) at p. 530). In considering whether a retracted statement can amount to corroboration of accomplice evidence, the circumstances in which it was made must be considered, and the reason given for the retraction is an important relevant factor.

In Asoka vs Republic [1973] E.A. 222, the trial judge stated that even without supporting evidence, he would have founded the conviction of the appellant on the confession of the appellant's co-accused, which implicated the appellant. The Court of Appeal pointed out that this was a misdirection; and stated on p. 224 as follows: -

"This apparent misdirection rose apparently because the judge used the confession of the co-accused as he would that of a confession by the appellant himself In the case of Anyango vs Republic [1968]

E.A. 239, this Court said at p. 322:

'If it is a confession and implicates a co-accused it may, in a joint trial, be 'taken into consideration' against that co-accused. It is however not only accomplice evidence but evidence of the 'weakest kind' (Anvuna s/o Omolo vs R. (1953) 20 E.A.C.A. 218): and can only be used as lending assurance to the other evidence against the co-accused (Goya s/o Gidamebanva vs R. (1953) 20 EACA 318).'

In the judgment of this Court in the Gopa case, this Court

after approving various quotations from Sarkar on Evidence, 9th Ed, and of Monir's Evidence, 3rd Ed., said at p. 322:

'Returning now to the submission by the appellant's counsel that the learned trial judge misdirected himself in treating the confession as the basis of the evidence against a co-accused and thus looking for corroboration. we are abundantly satisfied from the authorities cited above that the approach is the wrong one and that a confession can only be used as lending assurance to other evidence against the co-accused. evidence which only falls short by a very narrow margin of the standard of proof necessary for a conviction.'

It is correct to say that each case must be considered in the different circumstances of that case, and the weight to be placed on the involvement of an accused person by his co-accused's confession will differ in each case."

In the instant case before me, I have warned myself on the danger of acting on the retracted confessions by A3 and A4, without corroboration. It is evident that the two confessions do not only lend assurance to the other evidence adduced before Court, pointing to the participation of A3 (as well as other accused persons to whom I will advert) in the commission of the crime for which they have been indicted. They are, also, corroborated by independent evidence, which I have identified above. Such evidence includes that of Police Officers (PW59 and PW78), on the use of the name Basayevu by A3; the Namasuba landlady (PW12), on the renting and unexplained premature vacating of her rented house by A3 without notice; the Biashara Forex Bureau officials (PW23 and PW52) on the remittances of monies from Mombasa to Kampala; and others discussed herein above, all showing that A3 participated in committing the crime of terrorism.

In Karsan Velji vs R. [1957] E.A. 702, the appellant had made a statement to the immigration officer. At the close of the prosecution case, he elected not to give evidence; and called no witness. He stated from the dock that he wished to withdraw the statement he had given at the immigration offices. On appeal, the Court stated at p. 705 that: -

"In Robert Sinoya and David Sinoya vs R. (1939) 6 E.A.C.A. 155, it was suggested by the Court of Appeal for Eastern Africa that the danger of acting on a retracted confession in the absence of corroboration must depend to some extent upon the manner in which the retraction is made. ... In the circumstances of the case ... the learned Magistrate should ... have ... [given] himself a direction as to the danger of acting upon a retracted confession unless it is corroborated in material particulars or unless the Court after full consideration of the circumstances is satisfied of its truth (Miliawa s/o Mwinie vs R. (1953) 20 E.A.C.A. 255): and he should have looked for independent corroborative evidence implicating the appellant in a material particular."

In Fabiano Obeli and Others vs Uganda [1965] E.A. 622, the trial judge had convicted the appellants; but without having directed himself or the assessors on the need for corroboration of the evidence of Misaki (an accomplice). He had merely referred to the assessors and himself to the need to consider the evidence of the accomplice 'with the greatest caution'. On appeal, the Court stated at p. 623 as follows: -

"It is unfortunate that the learned trial judge does not appear to have directed the assessors or himself as to this need for corroboration: he merely referred, both in his direction to the assessors and in his judgment, to the need to consider the evidence of this witness 'with the greatest caution'. That is not enough.

The case of the other appellant, Benedicto Okai, was different, because in his case there was evidence of a full confession made by him while in prison to a fellow prisoner, Sebastiano Lwanga. ... We have ourselves scrutinized that evidence, bearing in mind that Sebastiano is himself a man of bad character and that, on his own evidence, he had heard something, at least, of the murder before he went to prison.

In spite of some curious features concerning this evidence, particularly in the cross-examination ... Sebastiano's evidence is capable in law of affording corroboration of the accomplice evidence of Misaki. As was said by this Court in Bassan and Wathobia VSR. [1961] E.A. 521, at p. 530:

'We think that a statement made by an accused person, whether amounting to a confession or not, may in a proper case amount to corroboration of accomplice evidence.'."

In Tuwamoi vs Uganda [1967] E.A. 84 the appellant had made two statements. The first was a confession; but the day after he made a

further statement, which was a complete denial of the crime. He was convicted pursuant to his confession. On appeal, the Court explained, at p. 88, the difference between a retracted and repudiated statement as follows: -

"The basic difference is, of course, that a retracted statement occurs when an accused person admits that he made the statement recorded but now seeks to recant, to take back what he said, generally on the ground that he had been forced or induced to make the statement, in other words that the statement was not a voluntary one. On the other hand a repudiated statement is one which the accused person avers he never made."

At p. 89, the Court stated as follows: -

"The present rule then as applied in East Africa in regard to a retracted confession, is that as a matter of practice or prudence the trial Court should direct itself that it is dangerous to act upon a statement which has been retracted in the absence of corroboration in some material particular; but that the Court might do so if it is fully satisfied in the circumstances of the case that the confession must be true."

With regard to whether a retracted statement should be treated differently from a repudiated one, the Court stated from pp. 90-91 as follows: -

"On reconsideration of the position, we find it difficult to accept that there is any real distinction in principle between a

repudiated and a retracted confession We would summarise

the position thus - a trial Court should accept any confession which has been retracted or repudiated or both retracted and repudiated with caution, and must before founding a conviction

on such a confession be fully satisfied in all the circumstance of the case that the confession is true. ... Court will only act on the confession if corroborated in material particulars by independent evidence .... But corroboration is not necessary in law and the Court may act on a confession alone if it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true."

Conduct incompatible with innocence, as corroboration.

PW2 testified, and A4 also stated in his extrajudicial-statement admitted in evidence, that A3 gave them instructions, then departed for Nairobi the day before the execution of the scheduled explosions at Kyadondo Rugby Club, Ethiopian Village Restaurant, and Makindye House to avoid being connected with the events. He explained to PW2 that owing to his past record, he feared that he would be arrested if the explosions took place when he was in Uganda. Second, as was testified to by A3's landlady (PW12), and PW2, and stated by A4 in his extra-judicial statement, A3 left his rented premises at Namasuba prematurely, and without informing PW12 of his termination of the tenancy. He instead left it to PW2 and A4 to collect his properties from the rented premises.

A3's conduct was entirely incompatible with innocence; and it corroborates the evidence adduced by PW1 and PW2, as well as the extrajudicial statements he and A4 made, about his A3's central role in the execution of the mission. In the event, I am satisfied that the prosecution has discharged the burden that lay on it; by proving, beyond any reasonable doubt, that Issa Ahmed Luyima (A3) was the mastermind and central character in the execution in Kampala of the heinous plan, hatched in Somalia by the Al-Shabaab, to attack Uganda, and thus punish her, for having contributed to the AMISOM forces in

Somalia. Issa Ahmed Luyima (A3) is certainly guilty of the offence of terrorism c/s section 7(2) of the Anti-Terrorism Act, 2002, as charged; and I accordingly convict him of that offence.

  1. Participation of Hussein Hassan Agade (Al)

The evidence adduced by PW1 is that when he went to Somalia in

  1. among those he found at an Al-Shabaab camp in Kismayu was Al, who he knew then as Hassan. He and Al had their military training together at Kismayu and Barawe; in all undergoing training together for seven months. After the training, they fought a number of battles in Somalia together under the Al-Shabaab. Police officer Christopher Oguso (PW59) who is a phone call and phone set analyst, testified that a Nokia phone bearing IMEI (Serial No.) 351528042707070 (exhibit PEI 85) was reportedly found attached to the unexploded explosive device found at Makindye House. From his analysis, he established that this phone had used two IMSIs (tel. Nos.) in Kenya; namely, tel. Nos. 254732783568 and 254734045678.

These two Kenyan tel. Nos., had constantly been in communication with tel. Nos. 254737588445 and 254732812681 in the period immediately before the Kampala blasts; using the SMS (Short Messaging System (text)) mode of communication only. He established that tel. No. 254732783568 was switched off on 6th July 2010 after use at Kawangare - Nairobi; while tel. No. 254734045678 was switched off on 23rd July 2010 after use at Githithia, Nairobi. He also established that tel No. 254737588445 was switched off on 10th July 2010 after use at Pangani, Nairobi; while tel. No. 254732812681 was also switched off just before the Kampala blasts. He established from analyzing the call data records (CDRs) of these tel. Nos., that tel. No. 254737588445 had queried Kenya Power & Lighting Company over electricity bill for meter A/c No. 2759149-01 (exhibit PEI 59).

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This meter was traced to the property of 'Witness L' (PW53) who identified its user as his tenant then, Hussein Hassan. PW53 provided Police with the tenancy agreement between himself and Hussein Hassan (exhibit PEI29). and the tel. No. for Hussein Hassan as 254715855449; which the police established was registered in the name of Hussein Hassan; and the CDR of this tel. No. is exhibit PEI35. Hussein Hassan (Al) was arrested by Police officer No. 58309 Sgt. Kenedy Osare Rasugu (PW48), and was found with a phone (exhibit PE295) having a Sim card bearing this tel. No. 254715855449; and he made a handwritten inventory, and a typed one, both of which Al duly signed (exhibits PEI23(a) and PE 123(b)). Upon his arrest, Al disclosed to PW59 that tel. No. 254732812681 belonged to Basa, a Ugandan he had trained with in Somalia, and had a house in Namasuba. Basa was later arrested and identified as A3.

Police officer AIGP John Ndungutse Ngaruye (PW78) testified that he was availed a Nokia phone handset, recovered from the unexploded device found at Makindye House. The phone handset bore IMEI (Serial No.) 351528042707070. Upon checking with the MTN Uganda, he established that the handset had been used by Sim card for Ugandan tel. No. 256788377743, which had also shared another phone set bearing IMEI (Serial No.) 359338035921630 with two Kenyan tel. Nos.; namely 254715855449 and 254732812681 when they were roaming in Uganda; as is shown by the CDRs for the two Kenyan tel. Nos. (exhibits PE322 and PE350 respectively). The CDRs for tel. Nos. 254715855449 and 254732812681 also showed that both had been used in the Namasuba area (Uganda) between May and July 2010.

The analysis showed that the two Kenyan tel. No. 254715855449 (registered in the name of Al, and found in his possession on arrest), and tel. No. 254732812681, as well as the Ugandan tel. No.

256788377743, were all switched off just before 11th July 2010. The analysis also established that Al's tel. No. 254715855449 had roamed in Uganda and shared a phone bearing IMEI (Serial No.) 358324037568470 with tel. No. 254723457803 (later identified as that of A5), and also with tel. No. 254719706497 belonging to A3. Furthermore, Al's tel. No. 254715855449 also shared another phone bearing IMEI (Serial No.) 35933803898908 with A3's tel. No. 254719706497. Al's tel. No. 254715855449 had also shared another phone bearing IMEI (Serial No.) 35822903686264 with A3's tel. No. 254719706497.

All these phone handsets were shared by the various tel. Nos. when the tel. Nos. were roaming in Uganda between 5th May 2010 and 30th June 2010; with the geo-location of all the calls mainly being at the Namasuba area. Police officer Christopher Oguso (PW59) testified that Al informed police that A3 was the user of tel. Nos. 254719706497 and 254732812681. Further analysis by PW59 established that Al’s tel. No. 254737588445 communicated with three tel. Nos. between 22nd June 2010 and 10th July 2010. It communicated eight times with A3’s tel. No. 254732812681 between 30th June 2010 and 1st July 2010; twenty four times with tel. No. 254732783568 between 3rd July 2010 and 10th July 2010; and nineteen times with tel. No. 254734045678 between 22nd June 2010 and 23rd June 2010. All these communications were by SMS only.

Analysis of the CDR of Al’s tel. No. 254715855449 shows it communicated forty nine times with A2’s tel. No. 254720945298 (exhibit PEI34) between 1st June 2010 and 10th July 2010. It communicated 49 times with A3’s tel. No. 254719706497 (exhibit PEI37) between 1st of June 2010 to 10th of July 2010. It also communicated fifteen times with A3’s tel. No. 254700745965 between 1st of June 2010 to 10th July 2010. It communicated fourteen times with A7’s tel. No. 254771666668, and also communicated nine times with All’s tel. No. 254735766637. It also communicated once with A6’s tel. No. 254737367444 on 19th June 2010. All these communications were by the SMS mode of communication; and not by the voice mode of communication.

In his cautioned statement, which, despite his retraction, I admitted in evidence as having been voluntarily given and without the application of any inducement or force on him, Habib Suleiman Njoroge (A7), confessed his role in the terrorist activities. He also revealed that on the day the explosives were being transported to Kampala, A 10 called him and informed him of the arrest of PW1 over his documents; and requested him to call All to give the contact of another person in Kampala to receive the bags containing the explosives. He called and met All in Nairobi; and gave him the information from A 10 regarding PW1. At the request of All, he called Al who joined them. After a discussion between Al, All, and one Jabir, which he did not attend, they asked him for A 10 s phone contact.

In his unsworn statement at the trial, Al who testified as DW9 denied the offence. He also denied that he implicated others upon his arrest; and wondered why the police never took a statement from him if indeed he was as cooperative to the police, as prosecution witnesses have stated. He admitted knowing A2; but as his fellow street preacher. He however denied any prior knowledge of A3 and All before he met them in prison. He denied ever being in Somalia; and pointed out that in fact PW1, whom he reminded Court was a confessed liar, had not named him in his (PWl's) extra-judicial statement (exhibit DEI) as one of the persons he (PW1) claims to have been with in Somalia.

He also denied ever telling PW1 names of the suicide bombers from Luzira prison. He however admitted the recovery of phones from him upon his arrest. Al also admitted that he was a tenant of PW53; but contended that utility money was paid to the landlord for payment to Kenya Power, so the request for the electricity bill was not made by him. He admitted that the phone with the IMEI (Serial No.) 359338035921630 was his. He also admitted that tel. No. 254715855449 was his registered No.; but denied owning tel. No. 254737588445. As I have pointed out herein above, PW1 is an accomplice; and so, his evidence requires corroboration, although since I have warned myself of the danger of acting on his evidence, I can safely act on it even without any corroboration.

The prosecution has however urged me to consider evidence adduced in Court, which it contends corroborates the evidence of PW1 about the participation of Al in the commission of the offence of terrorism with which he has been charged. These include the trail of telephone calls showing a beehive of activities between the phone sets and telephone numbers which the police officers analyzed and linked Al to A3, and to Namasuba where A3 had a safe house. From this beehive of activities, a pattern is clearly discernible; revealing a trail beginning with the SIM card found in the phone recovered from Makindye House, which linked the phone and SIM card therein to phones as well as SIM cards (tel. Nos.), including those of Al, which have been established to have been used by, and or found with, A3.

The analysis of the cobweb of phone activities reveal that during the period leading to the Kamplala blasts, the phone traced to Al was quite busy linking up with a particular group of people, from the Namasuba geo-location; and using the SMS (text) mode of communication only. It cannot be by coincidence that all these tel.

Nos. went off air just before the Kampala blasts. PW1 testified that he and Al, together with other persons, trained and fought in Somalia; and further, that it was Al who, from prison, revealed to him the names of the Kampala suicide bombers as Kakasule and Mursal. In his confession statement, A7 implicates Al of participation in the Kampala mission; thereby supplementing and lending assurance to the evidence by PW1 of Al's participation. His participation is also corroborated by the trail of his phone calls, linking him to A3 and to the phone and SIM card recovered from the Makindye House.

The irresistible inference one would naturally draw from the use of SMS, and the geo-location of the calls being mainly the Namasuba area, where A3 had a safe house for the Kampala attack mission, is that Al must have been playing a coordinating role in the mission. Tel. Nos. 254719706497 and 254732812681, which according to Police officer Christopher Oguso (PW59), Al had revealed to police as belonging to A3, are the very tel. Nos. Aidah Nabwami had also revealed to Namara Robinson (PW31) as belonging to her brother in law (A3). PW31 also testified that Aidah Nabwami, from whom the phone set (exhibit PE299) was recovered, told him that she had been given the phone by (A3); thus corroborating Al’s information to PW59 and PW78 about his dealings with A3. It also corroborates PWl's evidence that he (PW1), Al, and A3, were together in Somalia with, and fighting for, the Al-Shabaab.

The revelation of the names of the suicide bombers by Al to PW2, from prison, means first that he was deeply involved in the Kampala mission; and second, it gives credence to PWl's evidence that he and Al were together in Somalia and were together involved in the mission to attack Uganda. It is worthy of note that the period between May to July, when the Kenyan tel. Nos. were roaming in Uganda, operating mainly from the Namasuba geo-location, was the period when, from the testimonies of PW1 and PW2, cell members, suicide bombers, and the explosives, were delivered at A3's Namasuba house; from where they were eventually dispatched to the various venues for detonation. This corroborates PWl's and PW2’s evidence that preparations for the blasts were made during this period when A3, whom evidence shows Al was linked to, was based at the Namasuba house coordinating and supervising the preparations for the blasts.

It is also noteworthy that the various tel. Nos. hitherto in use, were switched off just before the Kampala blasts; as it strongly points at a design meant to lose their trail, and thereby dissociate the users from the Kampala bombings. The circumstantial evidence provided by Al's phone details and activities linking him to A3 and the Namasuba geo­location, therefore corroborates that of PW1 regarding Al's participation in the Kampala mission. The use of SMS, as well as the changing of phone sets, and the switching off, of the phones around the date of the blasts, must indeed have been done pursuant to, and in keeping with, the training PW1 testified had been given to them from Somalia in the use of phone codes for the execution of the mission. It must have been designed to avoid possible eavesdropping by State security apparatus; that could compromise the mission.

Owing to the damning evidence linking his phone and tel. Nos. to A3 and the phone recovered from the unexploded explosive device found at Makindye House, I think it was in Al's interest to explain the circumstances under which his SIM cards were interchangeably used in phones which are shown to have shared the use of SIM cards with the phone recovered from Makindye House, or with the phones being used around Namasuba. In the case of Abdu Ngobi vs Uganda, (supra), the

Supreme Court expressed itself as follows, with regard to the need for the defence to provide some explanatory evidence: -

"The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt. If the defence has successfully done so, the accused must be acquitted; but if the defence has not raised a doubt that the prosecution case is true and accurate, then the witnesses can be found to have correctly identified the appellant as the person who was at the scene of the incidents as charged.”

In the two combined appeals of (1) R. v. Sharmpal Singh s/o Pritam Singh; (2) Sharmal Singh s/o Pritam Singh v. R (supra), the Privy Council stated at pp. 17-18 that: -

"This is the sort of case in which a not incredible explanation given by the accused in the witness box might have created a reasonable doubt. But there is no explanation; and the prisoner’s silence is emphasised by his consequent conduct. How did he come to squeeze his wife’s throat? When the prisoner, who is given the right to answer this question, chooses not to do so, the court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence it has got nor dissuaded from reaching a firm conclusion by speculation upon what the accused might have said if he had testified.”

I have to categorically reiterate here that the burden of proof in the matter before me lies perpetually on the prosecution; to prove each of the Accused persons' guilt; as charged. The requirement for Al to offer an explanation in response to the otherwise damning evidence adduced by the prosecution, pointing to his participation in the crime charged, does not at all amount to a shift in the burden of proof to him. It merely affords him the opportunity to punch a hole in an otherwise strong prosecution case against him; and thus enable Court to also look at the other side of the coin, as it were. It certainly avoids the risk of Court having to determine his guilt, or otherwise, basing on the evidence adduced by the prosecution alone.

I have no doubt whatever in my mind that the prosecution has adduced the requisite evidence and proved beyond reasonable doubt that Hussein Hassan Agade (Al) participated in the commission of the offence of terrorism, for which he has been indicted and has stood trial. I accordingly find him guilty as charged; and therefore, convict him of that offence.

  1. Participation of Idris Magondu (A2)

Police officers PW59 and PW78 testified that upon arrest of Al his phone book was found to have tel. No. 254720945298, which he revealed was the contact for A2, whom he revealed was his accomplice in the Kampala bombing mission. This tel. No. was established to be registered in the name of A2. Police officer No. 72600 Sgt. Stephen Musyoki Munyao (PW55) testified that he tracked this Safaricom tel. No. 254720945298; and it led him to A2 whom he arrested, and from whom he recovered a phone (exhibit PE297) with a SIM card of that tel. No. 254720945298. The inventory for the recovery of the phone, which PW55 made is exhibit PE305. The call data record (CDR) of tel. No. 254720945298 is exhibit PEI34. and the report of the analysis of the call data record (CDR) for this tel. No., is exhibit PEI 57.

Analysis of exhibits PE I34 and PE297. and consideration of the testimony of PW59, show extensive communication between A2's tel.

No. 254720945298 and Al's tel. No. 254715855449. The two tel. Nos. communicated forty nine times between themselves in the period from 1st June 2010 to 10th July 2010; using both voice and SMS modes of communication. This was the period just before the Kampala blasts. A2's tel. No. 254720945298 communicated 18 times, between 2009 to 2010, with tel. No. 254722366634 (registered in A9’s name). Police officer (PW59) testified further that A2 led them (police) to the house of All’s mother in Nairobi where they learnt from one Jaffer Ali, a brother to All, that All had gone to Tanzania with wife; and this led to the arrest of All from Tanzania.

In his defence, A2 gave unsworn evidence in Court as (DW2); in which he denied ownership of tel. No. +254720945298 and also denied ownership of tel. No. 2547320945290. He contended instead that his tel. No. was +254724376909; which he used for communication with Al, a fellow street preacher in Nairobi. He conceded having communicated with A9; but explained that this was because A9 was a driver of a truck, which ferried his kids to school. He contended that no evidence was adduced in