HC: International Crimes Division (Uganda) http://ulii.org/ en Uganda v Umutoni (HCT-00-ICD-CR-SC-2014/3) [2014] UGHICD 1 (16 October 2014); http://ulii.org/ug/judgment/hc-international-crimes-division-uganda/2014/1 <span class="field field--name-title field--type-string field--label-hidden">Uganda v Umutoni (HCT-00-ICD-CR-SC-2014/3) [2014] UGHICD 1 (16 October 2014);</span> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 01/13/2021 - 17:07</span> <div class="clearfix text-formatted field field--name-field-search-summary field--type-text-with-summary field--label-above"> <div class="field__label">Search summary</div> <div class="field__item"><p>Criminal law</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-msword file--x-office-document"> <a href="https://media.ulii.org/files/judgments/ughicd/2014/1/2014-ughicd-1_0.doc" type="application/msword; length=125440">2014-ughicd-1.doc</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA </strong></p> <p><strong>(INTERNATIONAL CRIMES DIVISION AT KOLOLO)</strong></p> <p><strong>HCT- 00- ICD-CR -SC- NO. 003 OF 2014</strong></p> <p> </p> <p><strong>UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR</strong></p> <p><strong>VERSUS</strong></p> <p><strong>UMUTONI ANNET ::::::::::::::::::::::::::::::::::::::::::::::::::          ACCUSED</strong></p> <p> </p> <p> </p> <p><strong><u>(  BEFORE: THE HON. MR. JUSTICE E.K.MUHANGUZI, J.)</u></strong></p> <p><strong><u>JUDGEMENT</u></strong></p> <p><strong><u>BRIEF BACKGROUND</u></strong></p> <p>Umutoni Annet (“the accused”) was charged on two counts of aggravated child trafficking and Human Trafficking contrary to sections 3(1) (a), 4 (a) and 5 (a) of the Prevention of Trafficking in Persons Act No.7 of 2009 (hereinafter called “the Act”).</p> <p>On 10/9/2014 the accused was arraigned on an indictment containing two counts. After court read out and explained to her each count she pleaded not guilty to each of them. Court accordingly entered a plea of not guilty for her in respect of each count. Thereafter court interviewed Mr. Peter Clever Kiggundu and Ms. Juliet Kasendwa and proposed them to the accused who through her lawyer, stated that she had no objection to the two serving as assessors. Court accordingly appointed and administered to them the relevant oath.</p> <p>The prosecution led by Ms. Joan Kagezi for the D.P.P, called a total of eight witnesses while the defence called two witnesses comprising of the accused and one other witness. Mr. Tumwesigye Louis represented the accused during the trial.</p> <p>                                    <strong><u>THE EVIDENCE</u></strong></p> <p>The first prosecution witness, Dr. Ndiwalana Bernard (PW.1), a pathologist working as a surgeon with the Police testified that a police officer named Kainza Beatrice No. 20949, a corporal, brought Umubyeyi Phiona to him on 22/12/2011 for medical examination. That he examined her in a case ref. GEF/279/2011 and filled and signed a police form PF3A on which he noted his findings and conclusions. She was a female student from Kicukiro, Kigali Rwanda. From history and secondary characteristics and the dental formular, he concluded that she was 16 years old. She had a tear on her posterior aspect of the hymen more than 5 days old. The cause was a blunt penetrating object. He took off blood samples for HIV test and urine for pregnancy test and sent them to the laboratory. The results which were returned showed / were negative for both HIV and pregnancy. He concluded that the victim was depressed and had been sexually assaulted as her genitals had been penetrated. He handed over the PF3A to the investigating officer. The PF3A was admitted in evidence as prosecution exhibit P.1.</p> <p>The witness also received and examined Mahirwe Angella, who was also brought to him by the police woman corporal Kainza Beatrice, on 22/12/2011 with a police form PF3A bearing ref no. GF/27/2011. On examining her he found she was a female aged 14 years and on her genital area she had a tear on the left posterior aspect of the hymen and a whitish discharge and a mild swelling o the labia. There was tenderness and hyperemia (tenderness due to inflammation) on the genital area. He concluded that this was due to penetration by a blunt object. He took off a vaginal swab for culture and sensitivity and a gram stain to establish if there was any infection which he suspected. He also took off blood for HIV test and urine for pregnancy test. The results were negative for both HIV test and pregnancy. He filled the findings onto the PF3A which he signed and stamped on the 22/12/2011. The PF3A in respect of Mahirwe Angella was admitted in evidence as prosecution exhibit P.2.</p> <p>Further, that he quickly examined and diagnosed the patient. He established that Mahirwe Angella had sexually transmitted infection. He prescribed antibiotics, pessarries and pain killers to treat the infection. He sent her to the pharmacy at the police clinic where drugs were given free of charge. She was given the antibiotics, the pain killers but not the pessarries. The handwritten doctor’s prescription was admitted in evidence as prosecution exhibit P.3.</p> <p>In cross examination by defence counsel the witness said though he indicated in his examination in chief that Umubyeyi Phiona was 16 years old it was possible she could be above 16 years of age. She had well developed secondary characteristics and breasts are one of such characteristics. She had well kempt hair, no fresh wounds, no old scars. She looked depressed. i.e not happy, not comfortable. There was no relationship between her depression and difficulty in expressing herself due to language barrier.</p> <p>He took blood samples for HIV and urine for pregnancy tests. He talked to the victim in the presence of an interpreter whose name he did not recall but the victim could express herself. It was not part of his duties to find out if the victim had an ID of Rwanda. He stated that she had no injuries on her neck, back and abdomen. He referred her to a counselor because of the problems she narrated to him. He did not find out the transport means she used from Rwanda to Bweyogerere, or even how long she had been in Uganda prior to the medical examination but she told him she had been forcefully having sexual intercourse with one Job for one week.</p> <p>In re-examination this witness stated that anybody aged below 18 years cannot have a complete dental formular. Umubyeyi had an incomplete dental formular, so she could not have been 18 years in this case.</p> <p> </p> <p>Kemirembe Dorothy (PW.2), stated that her sister, Miriam Furah, a resident of Rwanda telephoned her in November, 2011 that someone visited her but went with some children. That Miriam wanted this witness’ assistance as she lived in Uganda and the children had been brought to Uganda. Miriam gave her a telephone number which the witness used to call a person whom she did not know and who did not know her. She did not want to tell her the reason but agreed to meet her. Miriam came to Uganda and together with the witness they went to Interpol who took both of them to Kireka police.</p> <p>The witness while at police at Kireka telephoned the accused and agreed to meet at shell Kireka. The witness then, in the company of police personnel, went and met the accused at shell Kireka adjacent to a supermarket. That the accused first denied being Annet and promised to take them to Annet. However, police arrested her and they all went to Kireka police station with accused whom Miriam recognized and identified as Annet, the accused.</p> <p> </p> <p>Finally that of the two children whom the accused was said to have been interested in, the witness knew only Umubyeyi Phiona who is a niece to the witness. That the accused had demanded from the witness UGX. 80,000= on telephone in order to show the witness those children and in order for the accused not to make a loss.</p> <p>In cross examination by defence counsel PW.2 stated that she was born in Uganda but her mother returned to Rwanda and the witness goes there to visit her at times. That she knows Rwandan residents are given “endangamuntu” as an identification document. That her telephone number is 0773 187613 but could not recall Miriam’s telephone number off hand or the number of the accused which she called her on. That the number she used to call the accused is the same one she still uses.</p> <p>Further the witness stated that in the year 2011 Umubyeyi Phiona had not got “endangamuntu” and even now, she believed, Phiona had not yet got one. That she saw Phiona after the arrest of the accused and she looked good.</p> <p>That she had a personal mobile phone whose number the witness did not know.</p> <p>She also saw Mahirwe Angella after the arrest of the accused and she did not have a mobile phone. She could not tell how Mahirwe looked as she did not know her before. She did not remember the phone number on which she called the accused.</p> <p> </p> <p>Furaha Miriam, PW.3, testified that she knew the accused, Umutoni Annet, as the one who in 2011 in October, met her at Kimisagara at a home cell fellowship. That she was with a baby and she offered her accommodation at the residence of the witness at Kahanga for one week.</p> <p>That after one week she left in the absence of the witness who did not know where she went. The witness had given her three days notice to leave but the accused stole her children, her daughter Phiona Umubyeyi and her neighbor’s daughter Mahirwe Angie. That she was first alerted about Phiona’s absence from home and when she checked in the house and did not see her.That she shouted and when neighbors’ came Mahirwe’s mother came and said even her kid had been taken. She reported to police who tried in vain to trace the children. Interpol at Kakiri in Kigali referred her to Interpol in Uganda who sent her to Kireka police. That before coming to Uganda she got a phone number from her son Mutangana, who had the phone number of the accused. That she gave that phone number to her sister Kemirembe to try and trace the accused who had taken the children.</p> <p>That at Kireka she remained at the police station while Kemirembe went with police personnel to look for the accused, whom the police arrested and the witness saw her after her arrest. The following day while still at the police station she saw police go with the accused and return later with the two girls and the accused. That her own daughter looked well but the other one looked emaciated and had lost hair as it was breaking off. That Phiona told her she had been used as a housemaid and she had been sleeping with a certain man while Angie said she was taken to a certain man who had slept with her and infected her. That Phiona was 16 years old.</p> <p>In cross examination by defence counsel this witness stated that she was a born again Christian, a business woman selling things in the market and did not go to school. That Phiona was born in December 1992. That her birth was registered because all children are registered in Rwanda. She thought that she got her registration to police at Kireka. That she did register her birth at the time she was born but simply obtained travel documents for travelling to Uganda. That she did not deliver her in a maternity but at home. That she delivered her in 1992. That by then there was no immunization but subsequently it was introduced.</p> <p>That she was baptized in a Pentecostal church but no baptism certificate was issued and that the witness was not present at the baptism. That she was about 10 years old in the year she could not remember. That termly reports are issued in Rwanda.</p> <p> </p> <p>That Phiona did not have “endangamuntu” but the witness has one herself and she showed it to court. She did not know Phiona’s telephone number in 2011. That her own number is the same she uses even now and is 078816573. That she has never telephoned the accused, and the accused has never called her either on her telephone even once. That during her visit to the home of the witness, the witness is the one who accommodated and fed the accused. That she did not allow the accused to take Phiona to tour Uganda. That she could not turn around and start looking for her in Uganda. That when the accused left the home of the witness Phiona was at home till about four days later that Phiona disappeared. She did not know how Phiona left.</p> <p> </p> <p>Further that during Phiona’s disappearance the witness did not talk to her on phone or to the accused. That after Kemirembe confirmed that Phiona was in Uganda then is the time when the witness became aware of Phiona’s being in Uganda. She denied being used by the Rwandan government to frame the accused. That she is not aware that the husband of the accused was a state operative of Rwanda. That she heard from the accused that her husband was working at some sort of depot and nothing about his being a state security operative. That she was not hiding Phiona’s documents of birth or age or baptism.</p> <p>In re-examination she clarified that after Phiona’s disappearance a boy called…. telephoned the accused while trying to look for Phiona and another boy also called Furaha had said Phiona had bid him farewell on her way to Uganda. That the husband of the accused was a muzungu.</p> <p> </p> <p>Mukamugarura Olive, PW.4 testified that she saw the accused when she came to this court earlier this year. That of her three sons and three daughters Mahirwe Angella is her first born, produced on 01/8/98. She is studying and living with her.</p> <p>That in October 2011 Angella was a pupil at Nkataza Mubahizi Prmary School but the witness could not find her until P.W.3 came to Uganda. That was after her own sister, Mujamaria Andet confirmed she was not at home and the witness went to PW.3 who told her that her own daughter, Phiona was also missing at home. Both the witness and P.W.3 reported their missing daughters to Gahanga Police Station and to local authorities of their residential area. That was in October 2011. She did not see her daughter till 2012 when PW.3 brought her back to Rwanda.</p> <p>In cross examination by defence counsel, the witness said that PW3.is the immediate neighbor. That she did not see the accused at PW.3‘s home in Kigali. She did not know how her daughter left her home. Her husband is called Kabeera Theonest. He was not present when Angella left their home. Angella was a pupil in primary five at the time she left home. It was holiday time and the next term was due to start in October.</p> <p>Mahirwe Angella (PW.5) stated that she was aged 16 years and studies tailoring in Mukademy at Nyanza near Kicukiro, Rwanda. She resides at Gahanga in Rwanda with her parents (PW.4) her mother and her father. That she knew the accused since she met her when the accused came to visit PW.3 at Gahanga in 2011. That the home of PW.3 and hers are just next to each other.</p> <p>That while living with her parents in 2011 she left her home on 04/11/2014 to go to Uganda with the accused so that the accused gives her a job. She left with the accused who left her at Rwentobo. From home they travelled by car to Remera and by bus to Nyagatare where they used motorcycles through jungles up to a swamp where they left the motorcycles and crossed the swampy river on foot up to Uganda. They then travelled by motorcycles to Rwentobo where the accused left her with her baby at the home of the motor cyclist who had transported them. That the accused told her she would return and collect her. That baby was about five months old. That the journey from Gahanga to Rwentobo took them about seven or eight hours. She spent about three days at the home of the motorcyclist and two days at the home of the motorcyclist’s father.</p> <p>That she did not tell anybody at home at the time she left that she was leaving home. The accused had told them she was going to give them jobs of working in a supermarket. She had discussed with Phiona Umubyeyi how they would come. That after spending two or three days at the motorcyclist’s home the accused came back with Phiona with whom the accused took both of them to Kampala. She took Phiona to a place the witness did not know but took the witness to the home of the accused.</p> <p>That she did not work anywhere else but was washing, cleaning and other home related work. The accused left the baby with Phiona while the witness stayed with the accused and her three children at the home of the accused.</p> <p>That at the home of the motor cyclist the motor cyclist used to come and sleep with the witness at night and have sex with her, while at the home of the accused she was treated well though she was not paid for the household chores. She reached the home of the accused sometime in November 2011 on a date she did not remember. That around January 2012 the accused came with police to her home and took the witness to Kireka police station where she found phiona, Phiona’s mother and Phiona’s Aunt. From there she was taken to the doctor for medical examination after police had collected her clothes from the home of the accused. Police also went to Rwentobo to arrest the motor cyclist. She was treated after medical examination.</p> <p>In cross examination by defence counsel she said at the time she left her home it was holiday time. At that time her father had not talked to the accused in her presence about the accused bringing her to Uganda. She never went with her to Phiona’s mother’s home.</p> <p>She was not meant to spend her holidays in Uganda. She knew she had come to Uganda to work and not to be returned to Rwanda.</p> <p>That by the time police found her at the home of the accused she had spent there three to four weeks during which time she stayed with the accused eating the same food.</p> <p>The accused never bought her a single cloth or anything else ever since they left Rwanda. During the time she spent with the accused she used to eat, sleep and wait for another day. She was not mistreated. There was a phone at the home but she had no personal phone.</p> <p>During that time she telephoned her Aunt Mukandoli to tell her where she was in Uganda, without any details. That she left her home in Gahanga alone without being escorted by anybody. She met the accused at Inyanza as they had agreed. That the accused had told her she would be working in a supermarket but instead she made her do house chores. She had taken her to Rwentobo though she did not see what happened to the witness while there. At the home of the accused, there was a fence and the witness could not communicate to neighbors due to language barrier. The accused told her she would work in a supermarket and return home after earning some money. She was just speculating or approximating on the time she spent at the home of the accused as time had long passed. That a supermarket is a place where people pick different things.</p> <p>In re-examination the witness said from Garanga to Inyanza the accused had given her money for taxi as they had agreed to meet.</p> <p> </p> <p>Umubyeyi Phiona (PW.6) testified that she was aged 18 years, having been born on 20/12/96, works in a hair salon at Nyamirambo in Rwanda and resides at Gahanga, Kicukiro, Kigali, Rwanda. That she knew the accused since she came to their home in November, 2011 and she stayed there for one week with a baby aged about seven months.</p> <p> That the accused left after one week and she saw the accused a few days later at Kimironko where she had told the witness to meet her. That when the accused left their home she said she had taken Mahirwe (PW.5) to Uganda and that she would return and take PW.6 also to Uganda to give both girls jobs to work in a supermarket, promising to pay each of them UGX. 100,000= to begin with and some more subsequently. That after Kimironko, after one night, the next day they both travelled by motor cycles to Rwentobo, where PW.5 had been left with the baby of the accused. From Rwentobo the two girls travelled with the accused and her baby to Kampala to a home of a lady called Scovia. This witness spent one week at Scovia’s home with the baby of the accused whom the witness took care of.</p> <p>That she would sleep with the baby as the accused had left the baby with her. The accused used to call at Scovia’s home from where she returned and collected the witness and took her to the home of the accused to continue looking after the baby. Nothing happened at the home of the accused where the witness stayed with the children of the accused and PW.5 also. That after spending one week at the home of the accused she was taken away by the accused to another home of Job and Jennifer having left the baby with PW.5. At that home she did house work and the accused introduced her to Job as the accused’s younger sister. That while at that home Job forced the witness into sexual intercourse daily for a week. She did not understand the language Job spoke but she saw police uniform in the bedroom and a pistol on the bed and believed Job was a policeman. After one week Job left that home and another two days later the accused came and collected her from that home. During that time of one week at Jennifer’s home where Job also was she was not paid at all.</p> <p>After the accused picking her from there she took her to Diana’s home to do housework to be paid UGX. 40,000 which she was also not paid for the two weeks she spent there.</p> <p>From Diana’s home the police came with the accused in December 2012 or 2011 ( she was not sure of the year). They took her to the police station where she met her mother (PW.3) and her Aunt (PW.2). She was taken with Angella (PW.3) to a doctor for medical examination. Police did not take her elsewhere.</p> <p>In cross examination by defence counsel she stated that her mother told her when she was born and from then she kept knowing her age. That in 2011 she did not have endangamuntu of Rwanda and up to date she does not have it. That to cross the border her mother is the one who talked on her behalf to allow her to cross the border. She denied producing any ID to the accused or to the police at Kireka. That she did not possess any documents to show when she was born. That she left her home four days after the departure of the accused. At that time she had a phone whose number she did not remember and she did not have that phone anymore. At the time she left home she had been promoted to secondary two level and that was holiday time. There was no agreement as to how long she was to stay in Uganda but she had agreed to come and work in a supermarket in unspecified capacity.</p> <p>She was supposed to be paid monthly. She completed more than one month in Uganda in various homes by the time police got to her. All the work she did was neither voluntary nor paid for. That at Job’s place she was not treated well.</p> <p>That she told both the accused and the police about Job. At Annet’s place she used to take care of the baby. The accused did not buy her any clothes or suitcase. That though she had a phone she did not telephone anybody in Rwanda because the accused had taken away her sim card. From her home at Gahanga to Kimironko she travelled by car. That she complained to the accused about what happened to her at Job’s place. She felt hurt because the job she had been promised is not what she did eventually. That she left her at Job’s place and went to her home.</p> <p>In re-examination she stated that when she complained to the accused that Job had forced her into sex the accused did nothing. That the next time the witness saw Job was when she saw him at the police station. That the accused is the one who initiated the idea of coming to work in Uganda. To travel from her home to Kimironko the accused left the witness with Rwandan Franks 1,000= for transport at the time she left their home on the agreement that she would return and take the witness to Uganda.</p> <p>The last prosecution witness, No. 29874 D/SGT Mugume Nathan is 47 years old police officer attached to CIID Headquarters, resident at Kawempe, Nabweru, Wakiso District. He testified that in 2011 he was attached at RRU Kireka that was mandated to fight crime but was also in investigations tracking phone networks. On 19/12/2011 he was instructed by the commandant of RRU to follow up a case that was originating from Rwanda. He was given telephone No. 0715045277 to track. He called one of the complainants who came to RRU and brought that number. She is called Kemirembe (PW.2).</p> <p>He guided her on what to talk to the person on that number which PW.2 did and agreed to meet with that other person at Bweyogere. Then he went with PW.2 and a police woman called Biira to Bweyogere on motorcycles where they directed the person of that number where to meet. On arrival they surrounded her and ordered her to go with them to RRU offices. He identified that person as the accused standing in court. At RRU the I.O interrogated her and she agreed she was Annet Umutonyi in the presence of one of the mothers of the victims. That on the 20/12/2011 the accused led them to a residence in Mbuya where they found a girl aged 14 years whom they brought to RRU offices. On the same day the accused led them to her residence at Bweyogerere where they found another girl whom they brought to RRU offices at Kireka.</p> <p>In cross examination he stated that she did not talk to the mothers of the two girls or the girls themselves. That the girls did not look well fed.</p> <p> </p> <p>No.20949 D/W/CPL. Kainza Beatrice (PW.8) aged 44 years attached to police CIID at CID Kireka, resident at Kira Road Police station, testified that on 20/11/2011 she was allocated file no. E/419/2011 to investigate.</p> <p>That already one suspect was arrested and in custody. She identified that person as the accused in court. That she got the accused from the cells and in the company of PW.7 went with the accused to a home in Mbuya at the home of a woman called Diana Batamuliza where the accused had said one of the girls was.</p> <p>At that home they found one girl who identified herself as Umubyeyi Phiona (PW.6) who appeared to have been working as a housemaid. The owner of that home was present. They took PW.6 to the police station at Kireka RRU offices and from recording the statement the witness learnt that PW.6 had been taken to Diana’s home to help look after a baby and do some house work.</p> <p>That later the accused took the police to her home at Bweyogerere where another girl called Mahirwe Angella was found and taken to Kireka RRU offices. At the home of the suspect, Angella (PW.7) said she was doing house work. That in the course of her investigations this witness learnt that both girls crossed to Uganda through short cuts and Rwentobo in Uganda, crossing swamps rather than passing through official border posts and being cleared. It appeared they were illegally brought into Uganda. She interviewed both girls and accompanied them to a doctor for medical examination to establish possibility of sexual abuse. Phiona (PW.6) said she had been sexually abused at Bweyogerere by a man called Job in 2011 while Angella (PW.5) said she had been sexually abused at Rwentobo by a motor cyclist in whose custody the accused had placed her. She established that both girls had been lured by the accused from Rwanda to Uganda to be given jobs in a supermarket. They were brought into Uganda illegally and not through official border posts, for clearance. Both girls had been brought into Uganda between November and December 2011 and made to move from home to home several times in the course of which both were defiled. Further that Job is a police officer at the rank of ASP whose other name is Mutegeki. He is a brother to the accused. When this witness interviewed Jennifer, at whose house PW.6 was sexually abused, Jennifer agreed that Job was coming to that house during the same period and that Job and the accused were friends.</p> <p>In cross examination by defence counsel the witness said Biira, sergent Mugume and herself all participated in handling this case at various stages and capacities.</p> <p> She did not know if constable Biira took an ID from the accused. She established that both girls left their homes (PW.6 left alone but PW.5 did not leave alone).</p> <p>In response to the assessors questions she clarified that she was aware that, apart from the human trafficking case, defilement cases were opened up against both Job and the motor cyclist in Ntugamo.</p> <p> </p> <p>Following court’s ruling that a prima facie case had been made out against the accused the defence adduced evidence of two witnesses in defence of the accused. The first one was Umutoni Annet (DW.1) the accused, who testified that she was aged 30 years, a student of Cavendish University and resident of Bweyogerere in Kira Town council. She stated that around 25/10/2011 she was in Kigali, Rwanda at Remera just next to the stadium within Kigali, with her aunt called Uwizeye Mary. She received a telephone call while she was in Uganda from a broker asking if she was selling her plot of land at Kicukiro , Niboye in Kigali. She told the latter she was not selling the land but the caller told her of an offer of 15,000, 000 Rwandese Franks for the plot. The witness called her husband Akishure Alex and told him about the offer and he advised her to proceed and sell. Her husband was at that time in South Korea.</p> <p> </p> <p>Following her husband’s advice she went to Kigali, to Nyarubungo cell where she met Miriam Furah (PW.3) at a home cell prayer fellowship. By that time the witness had spoken to the broker on phone. She took a cab which drove her straight to the Ministry of defence headquarters which was not her intended destination. There she was led to the office of Lt. col. Burabye whom she did not know before but she used to hear about. He told her “You know why you are here. I want you to help and find Akishure Alex, you cannot sell that land until you produce him and get permission to develop but not to sell the land. Her husband Akishure Alex had been in the Rwandan army and he deserted. She stayed in the army headquarters for four hours being questioned after which she met the broker at the behind gate with soldiers. He said she should be patriotic and know that the land belonged to her and Alex since their marriage on 26/3/2005.  </p> <p>After meeting the broker she went to the cell meeting where she met PW.3 where she talked to and mentioned to PW.3 her plans of selling her plot. That she then left for Uganda.</p> <p>The second time that month she returned to the same place and met PW.3, with whom they had exchanged contacts. She (PW.3) took the witness to her home where she stayed for three days fasting and praying over the issue of the plot of land.</p> <p>While at that home she met both PW.5 and PW.6 whom she interacted with and bought food for. During that time she exchanged telephone contacts with the two girls, even with the mother. Her own no. was 0715045277 and PW.3’s no was 0784203836. That PW.3 told her she wanted to visit Uganda and the witness told PW.3 that she was welcome.</p> <p>That PW.6 was on holiday and that both PW.6 and PW.5 said they would call and come to visit during holidays. Then she left PW.3’s home and returned to her own home in Uganda at Bweyogerere. That in November she went back to Rwanda the third time. That PW.6 and PW.5 kept calling her that they were ready to come to Kigali from where she would travel with them to Uganda. That PW.3 also used her phone 0784203836 and called her on phone 0715045277 about four times. That all were saying that they would come on holiday to Uganda. That after all those calls she met PW.6 and PW.5 in Kigali town, a distance of like from Kampala to Mbalala on Jinja Road, from their home which the witness had visited before. That she came with the two girls through Kigali town up to Buziba border in Nyagatare district, entering Uganda at Rwamatunguru in Ntungamo district. That PW.5 had an “endangamuntu” an equivalent of an LCI letter (Uganda).</p> <p>That she came straight with both girls to Kampala to her residence at Bweyogerere where she was hosting a church cell E2B3, a prayer group of Watoto Church. That the girls were eating, sleeping  and playing there. That she bought them clothes and they stayed at her home for between two and three weeks. That after that some lady called her telling her that her children were at the house of the witness and she wanted to see them, that she was PW.3’s sister. That she used phone no. 0773 187617 to call her. She did not come that week but the following week she called PW.5 and the witness went to pick that lady from Kireka. That in Kireka she had not seen the lady but instead some lady came to her and arrested her at shell petrol station at Kireka.</p> <p>From that she was taken to Kireka SIU where she found PW.3 and another man from Rwanda GII and the lady who had been communicating on phone with the witness. She was detained in the cells for that night but the following day she was taken to her house where both PW.6 and PW.5 were picked from. That she took the police woman there after which they went with the two girls to the police station where she was detained for 11 days.</p> <p>That on 24/11/2011 police asked her for her passport and the travel documents for the two girls in order to grant her bond. They took her back to her house and she gave the police her passport and the travel documents of the two girls.</p> <p>That PW.6 told her she was already 19 years and that PW.5 told her she was aged 16 or 17 years. That for the eleven days she was in police detention she was not allowed to make an explanation. That she was asked only about the whereabouts of her husband. She denied all the allegations in the indictment. That both girls came to her visit during holidays.</p> <p>That even PW.3 had called her and promised to come and visit but that when she came the witness met her at the police station.</p> <p>The witness produced a print out of her mobile phone no. 0715045277 to show its record of calls from October 2011 up to when she was arrested. From serial no.1-1403 is the record from October 2011 to 19/12/2011serial no. 1390 shows no. 250784203836, which PW.3 had given, came to her on 18/10/2011, showing PW.3 is the one who called the witness. Serial no. 136-139 and 1241 show that no. +250784203836 called the witness on her no. 0715 045277 on 10/11/2011. That she obtained those print outs between 26/9/2014 and 27/9/2014.</p> <p>That on 21/12/2011 no. 0773 187613 of PW.2 called the witness on her no. 0715 045277 (see serial no. 21). That the witness called PW.2 back the same day ( see serial no. 20). That PW.2 called the witness again  (see serial no. 19). Those show that the witness was in Kireka. The telephone print outs between PW.2 and the witness (the accused) on 19/12/2011 were admitted in evidence as defence exhibit D.2. the print outs showing the calls the accused exchanged with PW.3 on 10/11/2011 and 11/11/2011 by telephone no +250784203836 of PW.3 and no. 0715 045277 of the accused were admitted in evidence as defence exhibit D.3.</p> <p>Finally she denied bringing the two girls to Uganda for exploitation and</p> <p>stated that all the allegations were made against her so as to produce her husband who had deserted the army of Rwanda.  In cross examination by the prosecutor she said her husband is one of her witnesses and works in a new project in Mpigi. He is an agricultural scientist. He was in South Korea that he had gone for further studies in 2010. He returned on a date she was not sure about but he visited her in prison in 2013. She does not know if the Rwandan army has taken any action through calls and visits from people connected with the Rwandan Government.  The information in the 3<sup>rd</sup> column on the right of exhibit D.3 refers to her phone number and network she was on.</p> <p>That there was no man in PW.3’s home. She spoke to PW.3 only about the girls coming to Uganda and herself. She met the father of PW.5 but did not obtain his permission either from the mother. That she did not give the girls transport to bring them. They transported themselves up to Kigali town from where she paid for their transport up to Kampala. That their parents are poor. She and the girls did not pass through short cuts but through official border posts at Buziba in Rwanda and Rwamatungura in Uganda before, before taking a bus at Muhanga. That the police took her passport and the travel documents of the two girls from her home where she had been keeping their documents and other things for the girls without any bad motives.</p> <p>She denied leaving one of the girls with the motorcyclist in Rwentobo. That she came with both girls directly from Rwanda to Kampala. That all the names mentioned like Diana, Scovia, Jennifer were staying with her in the same cell of the church (E2B3A) in Bweyogerere. That she did not lead the police to a home in Mbuya to Diana’s home to pick PW.6. That PW.6 and the police lied. She did not take PW.6 to Diana’s home. All that was said about PW.6 being defiled by Job she heard about it at police after she was arrested. That these girls used to move on their own to different houses. Even her own kids used to do the same.</p> <p>That she was arrested by a police man and a police woman called Biira while Kainza took her to a doctor for check up. That she did not have any interest in the age of the two girls prior to crossing the border. That apart from the phone calls of the 10<sup>th</sup> and 11<sup>th</sup> November 2011 other calls were made to her.</p> <p>That she gave PW.3 Rwandese Franks 15,000,000 to help her clear debts they had at a local shop before leaving for the holiday in Uganda. She denied promising any jobs to the two girls as they did not know any relevant language in Uganda. That there was no payment agreement between her and the girls, as this was purely a holiday agreed with PW.3.</p> <p>In re-examination by defence counsel she said she knew about PW.6’s age from her ID (endangamuntu).</p> <p>In a clarification by one of the assessors she said she travelled with her baby only on the third 3<sup>rd</sup> time but not on the 1<sup>st</sup> or 2<sup>nd</sup> time.</p> <p>In a clarification to court she said the man she was with at the home cell meeting in Kigali was not her husband. He was just a friend. That PW.3 originally was friendly but after the arrest of the witness PW.3 showed she was not her friend.That her husband was the subject of her questioning by police though he visited her in Luzira.</p> <p>That she has a child with the muzungu man, a girl aged 12 years. That the baby she had when she visited Kigali was from her husband and was not of a mixed blood.</p> <p> </p> <p>Dr. Alex Akishure (DW.2), aged 45 years, works with Ministry of Agriculture, Animal Industry and Fisheries as a consultant for support Institutional Programme on a project in Mpigi District. He testified that the accused (DW.1) is his wife since 02/4/2005 when they wedded. That at that time he was an officer in Rwandan army as a lieutenant in Military Intelligence. That he stopped working as such in 2006 when he was posted to Addis-Ababa till 2008. He settled in Bweyogerere where he has a house. He was not officially discharged but that he informed his superiors by e-mail. That they sent an official to meet him but he refused to meet him. They sent mails and friends who told him he was being looked for. He reported himself to the CMI of Uganda being a Ugandan who had left Rwandan army and got cleared. That from that time the Rwandan Government continued looking for him. He did not participate in politics and wanted to live a normal life as a Ugandan.</p> <p>That from July 2010 he left Uganda on a scholarship to South Korea. At that time he was hiding because the Rwandan Government was looking for him. That through friends in Kigali and e-mails and internet they warned him that he could be taken back to Rwanda and be disciplined according to military code of conduct. That many officers were kidnapped by UPDF and repatriated back to Rwanda. That during this time of hiding he would not stay with the accused sometimes as he would, for security reasons, stay somewhere without telling her. While he was away the accused went to Rwanda to sell their property and while there, some officers of Military Intelligence tapped her phone. That the prospective buyer was such officer of Military Intelligence. That the witness was cleared by Military Intelligence of Uganda in 2008 and he settled and worked for the Uganda Government.</p> <p> </p> <p>However, the accused was arrested when she went to sell their property. That General James Kabarebe told her to convince the witness to go back but the witness refused. That is when he got a scholarship to go and study in South Korea, far from Uganda. That when he went that far his wife started to suffer as she could not convince him to go back to Rwanda. As she did not succeed they were not happy and they continued to witch-hunt her since they could not get to him.</p> <p>In cross examination by the prosecutor he stated that he returned from South Korea in July 2012. That from 2010 he did not return till July 2012. That the accused never went to South Korea.</p> <p>He left for South Korea in November 2010 and the accused delivered his child in June 2011. He knew only their three children she had with him but by the time the two met he did not know how many children she may have had. That since he returned from South Korea he tries to be security conscious. At that point of the trial defence counsel intimated that the defence had closed its case as the accused had not succeeded in getting the other witnesses. The defence filed its submission on 03/10/2014 and prosecution filed its submission on 07/10/2014.</p> <p> </p> <p><strong><u>THE LAW</u></strong></p> <p>Article 28(3) of the constitution of Uganda provides:-</p> <p><em>“Every accused person who is charged with a criminal offence shall:-</em></p> <p><em>(b) be presumed innocent until proved guilty or until that person has pleaded guilty”</em></p> <p> In all criminal cases, excepting a few statutory ones not including human trafficking, the burden of proof lies squarely upon the prosecution in regard to every essential ingredient of the offence. That burden which is on the standard of beyond reasonable doubt remains upon the prosecution throughout the trial and never shifts to the accused. See :-</p> <ol><li><strong><u>Woolmington V.D.P.P (1935) A.C.462;</u></strong></li> <li><strong><u>Okethi Okale &amp; others V. Republic [1965) E.A. 555;</u></strong></li> <li><strong><u>Lubowa &amp; Others V. Uganda [1967] E.A.440;</u></strong></li> <li><strong><u>Joseph Kiiza &amp; Anor [1978] E.A. 279. </u></strong></li> </ol><p>The offence of Aggravated child trafficking which is the subject of each of the two counts in the indictment before court and each of which the prosecution has to prove beyond reasonable doubt has five ingredients:-</p> <ol><li>The victim was a child;</li> <li>Transportation and transfer</li> <li>By means of the use of threat or use of force or other forms of coercion, of abduction, of fraud, of deception….or of giving or receiving of payments or benefits….</li> <li>For purposes of exploitation</li> <li>Accused’s participation.</li> </ol><p>Before embarking on evaluation or analysis of the evidence so as to conclude or determine whether or not each essential ingredient and the whole offence has been proved by the prosecution to the required standard, I must first dispose of one legal and preliminary issue that was belatedly raised by defence counsel in his final submissions. That issue is that the indictment in this case was bad for duplicity. That the inclusion of the words “abduction and deception and transported and transferred” in each count was not permitted by law since each act is and forms and should have formed a separate count as they all amounted to separate offences. He submitted that under section 3(a) of the Act the use of the words “or” is an indication that more than one offence was created and therefore the words “abduction” and “deception” “transported” and “transferred” were four separate offences which should have been in four separate counts. He cited the case of <strong><u>Uganda V.Amis [1970] E.A 294</u></strong> in support of that argument. He further submitted that this duplicity caused miscarriage of justice and as such the ensuing proceedings were a nullity. For that submission defence counsel relied on and cited the case of <strong><u>Laban Koti V.R [1962] E.A 439. </u></strong>In reply to this submission counsel for the prosecution stated that at the commencement of the hearing court established from the defence whether it had any issues with the indictment which the defence answered in the negative. Counsel for the prosecution referred to the case of <strong><u>Laban Koti VR</u></strong> cited by defence counsel and argued that “in deciding whether there is duplicity in a charge sheet, the test is whether a failure of justice has occured or the accused has been prejudiced” Further that the case of <strong><u>Uganda V. Amis [1970] E.A. 291</u></strong> cited by defence counsel was misinterpreted because in that case the submission that the charge was bad for duplicity was actually overruled by the trial judge and the appellant had been rightfully convicted and the indictment was properly drawn, because even if the offences charged were separate offences, it was permissible to charge them, conjuctively where the matter related to one single incident. She submitted that the “the abduction” and “deception”, “transporting and transferring” related to one single incident and it was therefore in order to include them in one count and as such there was no duplicity occasioned.</p> <p>I have carefully considered the submissions of both parties on this issue. It is true that when the case was called on for hearing in the morning of 10/9/2014 counsel for the defence had not had an opportunity to look at the indictment. Quite rightly, in my view, he sought and was granted an adjournment to be availed a copy of the indictment and seek instructions from the accused. Court directed the prosecution to avail defence counsel a copy of the indictment and evidence intended to be used at the trial. Court, in those circumstances, adjourned plea taking to the afternoon of that day at 2:30 pm. At 3:45 pm of that day and before the accused pleaded to the indictment Mr. Senkeezi; counsel for the accused then, stated:-</p> <p>            <em>“We are ready and willing to proceed with the indictment as it is.”</em></p> <p>That was in response to court’s prompting as to whether counsel had any issues relating to the indictment before his client, the accused, would be arraigned on the indictment. Counsel’s response did not raise any issues such as duplicity or any others. That point in time was, in my view, the appropriate time to raise the issue of duplicity. He did not raise that or any other issue relating to the indictment.</p> <p>Secondly, as submitted by counsel for the prosecution the test in determining duplicity in the charge is whether there was a failure of justice or the accused was prejudiced. Counsel for the accused has not shown how, if at all, there was any failure of justice or the accused was prejudiced. The accused was afforded, through defence counsel, an opportunity to look at and raise any issues or objections in relation to the charge (indictment) prior to taking plea by way of an adjournment from the morning to the afternoon on 10/9/2014. In the afternoon, prior to taking plea, court prompted  defence counsel to raise, if he wished to, any issues or objections on the indictment and counsel did  not raise any issues or objections. Instead he stated that he was ready and willing to proceed with the indictment as it was. In such a situation I find and hold that there was no failure of justice and the accused was not in any way prejudiced.</p> <p>Following the case of <strong><u>Uganda V.Amis (supra)</u></strong> it is permissible to charge an accused in one count in respect of acts which are stated in a way that shows separate actions done separately in one single transaction which constitutes an offence. For that reason the indictment would not be bad for duplicity. Accordingly, I find and hold that in the indictment before me there was no duplicity as the actions of abduction and deception, transportation and transfer of the victims in both count no.1 and no. 2 were all done in one transaction in this case as shown in the evidence on record.</p> <p>Consequently, I hereby over rule the objection as it has no merit.</p> <p>            <strong><u>ANALYSIS</u></strong></p> <ol><li><strong>The victims being aged 18 years.</strong></li> </ol><p>In relation to count no. 1 of the indictment it was alleged that Mahirwe Angella was aged 14 years. The prosecution had to prove that first ingredient beyond reasonable doubt and thus called Dr. Ndiwalana Bernard (PW.) who tendered in evidence medical examination report (exhibit P.1), Mukamugarura olive (PW.4) the mother of Mahirwe Angella and Mahirwe Angella herself (PW.5) all who testified to show that Mahirwe Angella was aged 14 years having been born on 01/8/1998. That evidence was consistent, without any contradictions and the defence did not seriously challenge or shake prosecution evidence on that element of the offence in count No.1 of the indictment.</p> <p>In the circumstances, I accept that evidence and accordingly find and hold that the essential ingredient of the victim in count No.1 of the indictment being aged below18 years was proved beyond reasonable doubt.</p> <ol><li><strong>Transportation and transfer</strong></li> </ol><p>In relation to this ingredient of the offence in count No.1 of the indictment, the victim (PW.5) testified that she left home at Gahanga with the accused and was transported by the accused all the way from Rwanda to Uganda. That was her evidence in chief. However, in cross examination she stated that she left her home at Gahanga alone without being escorted by anybody and travelled to Inyanza where she had agreed to meet the accused. That from Inyanza in Rwanda she travelled onwards with the accused who took her the rest of the journey through Rwentobo in Uganda up to Kampala. That evidence is not disputed and it is actually admitted by the accused (DW.1) in her own testimony, as she said that she transported the victim (PW.5) and the other victim (PW.6) all the way from Rwanda and transferred both of them to Uganda.</p> <p>The contradiction between the evidence of PW.5 in her evidence in chief and her cross examination as to how and with whom she left her home at Gahanga to Inyanza in Rwanda, in my considered view, is minor and would not affect the value or credibility of her evidence on this ingredient.</p> <p>I would therefore ignore such minor contradiction. (See the cases of:-</p> <ol><li><strong><u>Col. Sabuni V. Uganda [1981] HCB.11;</u></strong></li> <li><strong><u>Uganda V Rutaro [1976] HCB. 95;</u></strong></li> <li><strong><u>Wasswa Stephen &amp; Anor. V. Uganda, crim. Appeal No. 31/1995 (S.C) (unreparated);</u></strong></li> </ol><p>At any rate whether she left her home with the accused or left that home alone and met the accused at Inyanza where she met the accused and travelled with her from Inyanza  in Rwanda through Rwentobo in Uganda and finally to Kampala, the essence of being transported and transferred from Rwanda to Kampala has been proved and conceded by the accused.</p> <p>In the circumstances, I accept that evidence and accordingly find and hold that prosecution proved beyond reasonable doubt this essential ingredient of the offence.</p> <p>3 <strong><u>By means of the use of threat or use of force or other means of coercion, of abduction, of fraud, of deception… or of the giving or receiving of payments or benefits………</u></strong></p> <p>In relation to this essential ingredient, the specific means to achieve the commission of the evidence were spelt out in the indictment as:-</p> <p>            <em>“abduction and deception transferred and transported…”</em></p> <p>I have already dealt with and disposed of the aspect of “transferred” and “transported above. So far as abduction and deception is concerned I have carefully considered the evidence of Furaha Miriam (PW.3), Mukamugarura Olive (PW.4), Umubyeyi Phiona (PW.5) and Mahirwe Angella (PW.6) that both left their homes at Gahanga in Rwanda and were transported and transferred finally to Uganda by the accused. That PW.5 and PW.6 left their homes, albeit voluntarily, but without the knowledge or consent of their parents, especially when PW.5 was, without any dispute still aged below 18 years (a minor).</p> <p>Finally, that PW.5 and PW.6 were promised jobs in a supermarket in Uganda but that all the time since their arrival in Uganda in early November ( on 04/11/201 according to PW.5)  up to 19<sup>th</sup> or 20<sup>th</sup> December 2011 both victims were instead made to do basically household chores without pay at all.</p> <p>The accused, on the other hand denied that she abducted the girls and delivered them as alleged in the indictment. She said she brought them from Rwanda for a holiday to Uganda upon their own free will and request and knowledge of one of the mothers (PW.3). That both girls (PW.5) and (PW.6) mainly stayed at her home in Bweyogerere in Kampala, eating and playing with her own kids and under such conditions as buying them clothes and a suit case, all of which both PW.5 and PW.6 denied.</p> <p>While carefully considering these divergent versions of both sides I note and find that the accused conceded that she did not obtain the consent of the parents of either PW.5 or PW.6 prior to transporting and transferring the two girls from Rwanda to Uganda. These two girls, especially PW.5, were minors. Even though the accused had been housed by PW3 for a few days in Kigali, the accused was not closely related to either the family of either of the girls to justify taking those girls without their parent’s knowledge or consent. In those circumstances I hold that the taking away of the two girls by the accused without the knowledge or the consent of their parents amounted to abduction.</p> <p>Secondly, I do not believe that the girls asked the accused to spend a holiday in Uganda with her since they met her for a few days only when she was a guest at the home of PW.3 and not a relative of any of them. Even at the home of PW.3 the accused had not gone there as a prior known visitor. She was just a casual visitor. I am more inclined to believe the evidence of both PW.5 and PW.6 that the accused falsely promised to give both girls jobs at a supermarket in Uganda but upon reaching Uganda, did not honour her promise to them. That, in my considered opinion, amounted to deception.</p> <p>In the circumstances I find and hold that prosecution proved beyond reasonable doubt the essential ingredient of abduction and deception in respect of each of the two victims in counts No.1 and 2 of the indictment.</p> <p>4 <strong><u>For Purposes of exploitation</u></strong></p> <p>With regard to this essential ingredient in both counts No.1 and 2 of the indictment I have noted above in this judgement the evidence of PW.5 and PW.6 on one hand compared to that of the accused (DW.I) on the other hand giving divergent versions of what activities the two girls were actually engaged in from their arrival time in Uganda till police found them. Once again I believe the version of the two girls and disbelieve that of the accused for the reasons given above. Further I find and hold that engaging both girls in taking care of the baby of the accused as well as doing other household chores that the girls did, according to their evidence, without any pay amounts to exploitation, in my considered view. Further still, both girls (PW.5 and PW.6) testified that the accused placed each of them (PW.5 at Rwentobo) and PW.6 at Kyobutungi Jennifer’s house) in situations where each of PW.5 and PW.6 were sexually abused. That evidence, in my considered view, amounted to exploitation even if it was not to the advantage or benefit of or in the knowledge and with the consent of the accused, all of which are not necessary to prove exploitation as defined in section 2(d) of the Act<strong>. </strong></p> <p>For the above reasons I find and hold that prosecution proved beyond reasonable doubt the essential ingredient of exploitation in counts No.1 and 2 of the indictment, in respect of both victims of the offence.</p> <p>Let me at this stage return to the age of the victim in count No.3, namely Umubyeyi  Phionah. There was the evidence of Dr, Ndiwalana Bernard (PW.1) and particularly the medical examination report on PF3A which was admitted in evidence as P.1 in respect of Umubyeyi Phiona, on which PW.1 concluded that the victim was aged 16 years in 2011 but conceded in cross examination that she could be aged above 16 years or even above 18 years as she had well developed secondary characteristics such as breasts. However, in re-examination that witness stated:-</p> <p><em>“Any one aged below 18 years cannot have a complete dental    formular. The victim had incomplete dental formular, so she could have been 18 years old in this case”.</em></p> <p>In addition to the evidence of PW.1 there is the evidence of the victim herself (PW.6) who testified that she was born on 20/12/1996 in her evidence in chief. Under cross- examination by defence counsel she said her mother (PW.3) told her when she was born and the witness kept knowing her age. Apparently, that is why she stated her age to be 18 years upon being sworn in as a witness at the end beginning of her evidence. If that was the only evidence regarding the age of this victim there would not be any doubt at all about her age.</p> <p> </p> <p>However, there is the evidence of her own mother, Furaha Miriam (PW.3) that stated in her evidence in chief that PW.6 was aged 16 years but under cross examination by defence counsel she stated that she delivered PW.6 in 1992 at home and that she did not register the birth of PW.6. Further  that PW.6 did not posess the official identification document of Rwanda known as “endangamuntu”, which elsewhere in the evidence on record every resident in Rwanda aged 18 years and above ought to have and indicates the age of that person.</p> <p>Faced with the contradiction between the evidence of PW.1 and PW.6 which puts the age of the victim about 15 or 16 years in 2011 on one hand and that of PW.3 ( the  mother of the victim) which puts the age of the victim at 19 years. I would resolve this contradiction in favour of the accused.  See the cases of :-</p> <ol><li><strong><u>Alfred Tajar V. Uganda, EACA, Crim. Appeal No. 167/69;</u></strong></li> <li><strong><u>Col. Sabuni V. Uganda, [1981] HCB 11;</u></strong></li> <li><strong><u>R.V Chamulon Wero Olango [1937] 4EACA 46;</u></strong></li> <li><strong><u>Siraji Sajabi V. Uganda Crim Appeal No. 31/98(C.A).</u></strong></li> </ol><p> </p> <p>I therefore find and hold that due to the contradiction/ inconsistency in the evidence regarding the age of the victim, Umubyeyi Phiona, the proof of her age has been cast in doubt and hence fall below the required standard beyond reasonable doubt.</p> <p>Consequently, that part only of count no. 2 has not been so proved.</p> <p> </p> <p><strong><u>5. Participation of the accused</u></strong></p> <p>The above and last ingredient of the offences in counts No.1 and No.2 was, in my considered opinion, sufficiently touched on by nearly all witnesses at one stage of the transaction constituting the offence in both counts in the indictment.</p> <p>While dealing with the essential ingredient of transporting and transferring the victims I found and held that prosecution proved beyond reasonable doubt that the accused transported and transferred both victims from Rwanda to Uganda. What I must bring out clearly now is that both victims (PW.5 and PW.6) testified that they did not have or use any travel documents and as such they appear not to have entered Uganda through official boarder post but rather crossed from Rwanda and entered Uganda through crossing swamps or swampy rivers on foot, which suggests unlawful entry into Uganda. As such the accused brought the two girls into the country illegally.</p> <p>Similarly I held and found that the accused used abduction, deceit and fraud as a means of committing the actions constituting the offence in the indictment before court.</p> <p>Thirdly, I held that the victims were exploited through unpaid labour in various homes they were kept, including the home of the accused. The victims suffered forceful sexual intercourse both at Rwentobo (in the case of PW.5) and at Bweyogerere (in the case of PW.6) when the accused brought them from Rwanda to Uganda illegally.</p> <p>In all those circumstances and stages of the commission of the offence I find and hold that the accused did participate in the commission of the offences in both counts No.1 and 2 of the indictment. Therefore I find and hold that the prosecution proved beyond reasonable doubt this last ingredient of the participation of the accused in the commission of the offence in each count of the indictment.</p> <p>I have carefully considered the evidence DW.1 and DW.2, especially imputing conspiracy between prosecution witnesses on one hand and elements of the Rwandan army on the other, to frame the accused with malicious charges purposely to force the accused to cooperate with the Rwandan army to get the husband of the accused (DW.2) to face disciplinary proceedings for deserting the Rwandan army which (DW.2) at some time served in but later deserted. That defence evidence did not in my view, show any connection between any of the prosecution witnesses with any elements of the Rwandan army or government. I was neither convinced nor persuaded to believe that evidence and I reject it, particularly the veiled imputation of some sort of conspiracy between prosecution witnesses and the Rwandan army or government.</p> <p>In conclusion I find and hold that prosecution proved beyond reasonable doubt all the essential ingredients of the offence in count No.1 of the indictment.</p> <p> </p> <p> However, I find and hold that in count No.2 of the indictment the prosecution did not prove beyond reasonable doubt the essential element regarding the age of one of the victims (Umubyeyi Phiona) though prosecution proved all other essential ingredients of the offence in that count.</p> <p>Consequently, I find and hold the accused guilty on count No.1 as charged but acquit the accused of the offence she was indicted for in count No.2 of the indictment. Instead I find the accused guilty of the offence under section 3 (a) of the Act as charged.</p> <p>                                                                                    <strong>E.K. Muhanguzi</strong></p> <p><strong>                                                                                    JUDGE</strong></p> <p><strong>                                                                                    16/10/2014</strong></p> <p><strong>Court:</strong> By consent of both parties let the prosecution file and serve defence counsel impact statements with aggravation and mitigation submissions including compensation offer and on 17/10/2014 and the defence do likewise on 21/10/2014 and prosecution shall reply on 27/10/2014. Thereafter sentencing judgment will be delivered on 03/11/2014 at 9:00 am.</p> <p>                                                                                    <strong>E.K. Muhanguzi</strong></p> <p><strong>                                                                                    JUDGE</strong></p> <p><strong>                                                                                    16/10/2014</strong></p> <p><strong><u>COURT  </u></strong></p> <p>Judgment delivered, signed and dated in presence of:-</p> <ol><li>Accused</li> <li>Ms. Joan Kagezi; SPSA for prosecution</li> <li>Ms. Louis Tumwesigye for accused</li> <li>Ms. Peace Kaudha- Court Clerk</li> <li>Mr. P.C Kiggundu- present.</li> </ol><p> </p> <p><strong>E.K. Muhanguzi</strong></p> <p><strong>JUDGE</strong></p> <p><strong>16/10/2014</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong><u>SENTENCE AND REASONS</u></strong></p> <p>Following the conviction of Umutoni Annet (hereinafter called the convict) on count No.1 for aggravated child trafficking C/S 5 (a) and on count No.2 for human trafficking under the Prevention of Trafficking in Persons Act, the prosecution filed written submissions on 20/10/2014 and defence also filed submissions on 23<sup>rd</sup>/ 10/2014 as directed by court at the sentencing hearing. The respective submissions form part of the court’s record.</p> <p> </p> <p>I have carefully studied the submissions of both parties. I have noted that no victim or community impact statements were referred to, understandably because the victims are residents of Rwanda and were only available during the trial in Uganda and after testifying they immediately travelled back to Rwanda before conclusion of the trial. Also presumably due to logistical reasons the prosecution could not readily obtain community impact statement from Rwanda in good time for this hearing. It appears therefore that the submissions at the sentencing hearing were largely based on what transpired at the trial.</p> <p> </p> <p>To that extent therefore Court will largely base the sentence to what can be gathered from the trial. Conviction under section 5 (a) attracts a maximum death sentence while that under section 3 (a) attracts a maximum sentence of fifteen years prison term. The prosecution submission on aggravating circumstances refers to:-</p> <ol><li>in count No.1 the victim being aged only 14 years at the time she was trafficked.</li> <li>that the victim lost her chastity as a result of being forced into sexual intercourse and being infected with a sexually transmitted disease.</li> <li>The victim looked malnourished at the time she was recovered from the convict’s home.</li> <li>The victim was exploited by not being paid for the house chores she performed.</li> <li>The victim’s mother (PW.4) exhibited anguish and distress at the trial.</li> <li>Human trafficking cases in Uganda and internationally are increasingly registered in courts and the Attorney General has consented to prosecution of 6 (six) of them so far.</li> <li>The victim and their parents have had to travel three (3) times from Kigali, Rwanda and Kampala for investigation and prosecution of this case.</li> <li>One of the victims, Angella Mahirwe, who had been in primary five (5) at the time she was trafficked had to abandon formal school and resort to vocational training.</li> <li>The victim in count No.2, Umubyeyi Phiona, was moved from home to home and was made to do domestic chores without pay.</li> <li>The victim too lost her chastity when she was forced into sexual intercourse for a week by one Job and PW.1, in his medical report stated that the injuries in her sexual organs were recently inflicted on her by a blunt object.</li> <li>The victim too, who was a secondary student in senior one (1), dropped out of school and became a salon attendant, thereby suffering an interruption of her studies.</li> <li>Both that victim and her mother suffered anxiety and distress as a result of this offence.</li> </ol><p>In view of the above cited aggravating factors prosecution sought a custodial sentence of fifteen (15) years.</p> <p>Defence counsel, in mitigation on the other hand, submitted and prayed for lenience on grounds:-</p> <ol><li>that the convict is a first offender, which prosecution could not dispute.</li> <li>that she is aged only 30 and a student at Cavendish University.</li> <li>that consideration be had to guideline 9 (5) where for a first offender, imprisonment is not a desirable sentence (perhaps here he meant guideline 11 (2) (d) ).</li> <li>that she suffers from peptic ulcers and high blood pressure (but provided no evidence).</li> <li>that she has been in custody for 20 months.</li> <li>that the victims left their homes on their own up to where they met the convict.</li> <li>that there was no use of violence.</li> <li>that the convict was not personally responsible for the sexual assault of the victims.</li> <li>that the victims did not contract the STD from the convict</li> <li>that the victims stay in Uganda for 2 or 3 weeks was during holidays and could not have caused their disruption or loss of study opportunities.</li> <li>that payment for work done in Uganda for the 2 or three weeks could not have been made as the period was less than a months.</li> <li>that the statistics referred to by prosecution did not show conviction numbers but only reported cases.</li> <li>that there has not been any other conviction before this one.</li> <li>that the victims did not loose their chastity at the instance of the convict or during the period in issue.</li> <li>that the victim’s coming to Uganda willingly is a mitigating factor.</li> <li>lastly defence counsel submitted that the convict, being a primary care giver who looks after her three (3) children including one aged three (3) years while their father works far away from their home, is the best person to look after her children. Therefore he prayed that the convict be sentenced to a fine and/ or caution instead of a custodial sentence.</li> </ol><p> </p> <p>After serious and thorough consideration of the submissions of both parties I am of the considered view that:-</p> <ol><li>the offences of aggravated child trafficking and human trafficking that the convict had been convicted of are very serious offences. They attract maximum sentences of death and fifteen (15) years prison terms respectively. Neither of them has an option of a fine or similar sentence, though defence counsel prayed for and suggested a fine and or a caution as an alternative sentence.</li> </ol><p> </p> <ol><li>I have considered both aggravating and mitigating factors referred to by both counsel, such as the convict being a first offender, being aged 30 years and a student at Cavendish University.</li> </ol><p> </p> <ol><li>I am also aware that she is a mother of three whom her husband is aware of plus another child from another man (according to the evidence of the convict herself and of other witnesses.</li> </ol><p> </p> <ol><li>Further, I note that the convict shares the care of the children with her husband who is a well educated and highly remunerated person as he is employed as a consultant while the convict is a mere student at University who at times leaves the children in the care of other people, especially when she travels outside Uganda.</li> </ol><p> </p> <p>After balancing the aggravating and mitigating factors and after considering the seriousness of the offences and the maximum sentences of death for aggravated trafficking in children and fifteen years prison term for trafficking in persons, and finally considering that the convict has spent a total of twenty (20) months on remand I hereby sentence the convict to prison terms of eight (8) years on the count of aggravated child trafficking and five (5) years on the count of trafficking in persons. The two prison terms shall run concurrently.</p> <p>The convict is hereby informed of her right of appeal to the court of appeal against both conviction and sentence or any of the two within fourteen (14) days from today.</p> <p> </p> <p><strong>E.K. Muhanguzi</strong></p> <p><strong>JUDGE</strong></p> <p><strong>16/10/2014</strong></p> <p>     </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>03/11/2014</p> <p>Accused in court</p> <p>Ms.Nabisenke PSA for prosecution</p> <p>Ms Peace Kaudha- Court clerk</p> <p>Mr. P.C. Kiggundu and Ms. Kasendwa-Assessors</p> <p> </p> <p> </p> <p>Court: Sentence passed / pronounced in the presence of all the above.</p> <p> </p> <p> </p> <p><strong>E.K. Muhanguzi</strong></p> <p><strong>JUDGE</strong></p> <p><strong>16/10/2014</strong></p> <p> </p> <p> </p> <p>         </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-17492a034b41840a818236c661daabbe9d2ff6051550e8c7604c1e909d6c9f03"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA </strong></p> <p><strong>(INTERNATIONAL CRIMES DIVISION AT KOLOLO)</strong></p> <p><strong>HCT- 00- ICD-CR -SC- NO. 003 OF 2014</strong></p> <p> </p> <p><strong>UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR</strong></p> <p><strong>VERSUS</strong></p> <p><strong>UMUTONI ANNET ::::::::::::::::::::::::::::::::::::::::::::::::::          ACCUSED</strong></p> <p> </p> <p> </p> <p><strong><u>(  BEFORE: THE HON. MR. JUSTICE E.K.MUHANGUZI, J.)</u></strong></p> <p><strong><u>JUDGEMENT</u></strong></p> <p><strong><u>BRIEF BACKGROUND</u></strong></p> <p>Umutoni Annet (“the accused”) was charged on two counts of aggravated child trafficking and Human Trafficking contrary to sections 3(1) (a), 4 (a) and 5 (a) of the Prevention of Trafficking in Persons Act No.7 of 2009 (hereinafter called “the Act”).</p> <p>On 10/9/2014 the accused was arraigned on an indictment containing two counts. After court read out and explained to her each count she pleaded not guilty to each of them. Court accordingly entered a plea of not guilty for her in respect of each count. Thereafter court interviewed Mr. Peter Clever Kiggundu and Ms. Juliet Kasendwa and proposed them to the accused who through her lawyer, stated that she had no objection to the two serving as assessors. Court accordingly appointed and administered to them the relevant oath.</p> <p>The prosecution led by Ms. Joan Kagezi for the D.P.P, called a total of eight witnesses while the defence called two witnesses comprising of the accused and one other witness. Mr. Tumwesigye Louis represented the accused during the trial.</p> <p>                                    <strong><u>THE EVIDENCE</u></strong></p> <p>The first prosecution witness, Dr. Ndiwalana Bernard (PW.1), a pathologist working as a surgeon with the Police testified that a police officer named Kainza Beatrice No. 20949, a corporal, brought Umubyeyi Phiona to him on 22/12/2011 for medical examination. That he examined her in a case ref. GEF/279/2011 and filled and signed a police form PF3A on which he noted his findings and conclusions. She was a female student from Kicukiro, Kigali Rwanda. From history and secondary characteristics and the dental formular, he concluded that she was 16 years old. She had a tear on her posterior aspect of the hymen more than 5 days old. The cause was a blunt penetrating object. He took off blood samples for HIV test and urine for pregnancy test and sent them to the laboratory. The results which were returned showed / were negative for both HIV and pregnancy. He concluded that the victim was depressed and had been sexually assaulted as her genitals had been penetrated. He handed over the PF3A to the investigating officer. The PF3A was admitted in evidence as prosecution exhibit P.1.</p> <p>The witness also received and examined Mahirwe Angella, who was also brought to him by the police woman corporal Kainza Beatrice, on 22/12/2011 with a police form PF3A bearing ref no. GF/27/2011. On examining her he found she was a female aged 14 years and on her genital area she had a tear on the left posterior aspect of the hymen and a whitish discharge and a mild swelling o the labia. There was tenderness and hyperemia (tenderness due to inflammation) on the genital area. He concluded that this was due to penetration by a blunt object. He took off a vaginal swab for culture and sensitivity and a gram stain to establish if there was any infection which he suspected. He also took off blood for HIV test and urine for pregnancy test. The results were negative for both HIV test and pregnancy. He filled the findings onto the PF3A which he signed and stamped on the 22/12/2011. The PF3A in respect of Mahirwe Angella was admitted in evidence as prosecution exhibit P.2.</p> <p>Further, that he quickly examined and diagnosed the patient. He established that Mahirwe Angella had sexually transmitted infection. He prescribed antibiotics, pessarries and pain killers to treat the infection. He sent her to the pharmacy at the police clinic where drugs were given free of charge. She was given the antibiotics, the pain killers but not the pessarries. The handwritten doctor’s prescription was admitted in evidence as prosecution exhibit P.3.</p> <p>In cross examination by defence counsel the witness said though he indicated in his examination in chief that Umubyeyi Phiona was 16 years old it was possible she could be above 16 years of age. She had well developed secondary characteristics and breasts are one of such characteristics. She had well kempt hair, no fresh wounds, no old scars. She looked depressed. i.e not happy, not comfortable. There was no relationship between her depression and difficulty in expressing herself due to language barrier.</p> <p>He took blood samples for HIV and urine for pregnancy tests. He talked to the victim in the presence of an interpreter whose name he did not recall but the victim could express herself. It was not part of his duties to find out if the victim had an ID of Rwanda. He stated that she had no injuries on her neck, back and abdomen. He referred her to a counselor because of the problems she narrated to him. He did not find out the transport means she used from Rwanda to Bweyogerere, or even how long she had been in Uganda prior to the medical examination but she told him she had been forcefully having sexual intercourse with one Job for one week.</p> <p>In re-examination this witness stated that anybody aged below 18 years cannot have a complete dental formular. Umubyeyi had an incomplete dental formular, so she could not have been 18 years in this case.</p> <p> </p> <p>Kemirembe Dorothy (PW.2), stated that her sister, Miriam Furah, a resident of Rwanda telephoned her in November, 2011 that someone visited her but went with some children. That Miriam wanted this witness’ assistance as she lived in Uganda and the children had been brought to Uganda. Miriam gave her a telephone number which the witness used to call a person whom she did not know and who did not know her. She did not want to tell her the reason but agreed to meet her. Miriam came to Uganda and together with the witness they went to Interpol who took both of them to Kireka police.</p> <p>The witness while at police at Kireka telephoned the accused and agreed to meet at shell Kireka. The witness then, in the company of police personnel, went and met the accused at shell Kireka adjacent to a supermarket. That the accused first denied being Annet and promised to take them to Annet. However, police arrested her and they all went to Kireka police station with accused whom Miriam recognized and identified as Annet, the accused.</p> <p> </p> <p>Finally that of the two children whom the accused was said to have been interested in, the witness knew only Umubyeyi Phiona who is a niece to the witness. That the accused had demanded from the witness UGX. 80,000= on telephone in order to show the witness those children and in order for the accused not to make a loss.</p> <p>In cross examination by defence counsel PW.2 stated that she was born in Uganda but her mother returned to Rwanda and the witness goes there to visit her at times. That she knows Rwandan residents are given “endangamuntu” as an identification document. That her telephone number is 0773 187613 but could not recall Miriam’s telephone number off hand or the number of the accused which she called her on. That the number she used to call the accused is the same one she still uses.</p> <p>Further the witness stated that in the year 2011 Umubyeyi Phiona had not got “endangamuntu” and even now, she believed, Phiona had not yet got one. That she saw Phiona after the arrest of the accused and she looked good.</p> <p>That she had a personal mobile phone whose number the witness did not know.</p> <p>She also saw Mahirwe Angella after the arrest of the accused and she did not have a mobile phone. She could not tell how Mahirwe looked as she did not know her before. She did not remember the phone number on which she called the accused.</p> <p> </p> <p>Furaha Miriam, PW.3, testified that she knew the accused, Umutoni Annet, as the one who in 2011 in October, met her at Kimisagara at a home cell fellowship. That she was with a baby and she offered her accommodation at the residence of the witness at Kahanga for one week.</p> <p>That after one week she left in the absence of the witness who did not know where she went. The witness had given her three days notice to leave but the accused stole her children, her daughter Phiona Umubyeyi and her neighbor’s daughter Mahirwe Angie. That she was first alerted about Phiona’s absence from home and when she checked in the house and did not see her.That she shouted and when neighbors’ came Mahirwe’s mother came and said even her kid had been taken. She reported to police who tried in vain to trace the children. Interpol at Kakiri in Kigali referred her to Interpol in Uganda who sent her to Kireka police. That before coming to Uganda she got a phone number from her son Mutangana, who had the phone number of the accused. That she gave that phone number to her sister Kemirembe to try and trace the accused who had taken the children.</p> <p>That at Kireka she remained at the police station while Kemirembe went with police personnel to look for the accused, whom the police arrested and the witness saw her after her arrest. The following day while still at the police station she saw police go with the accused and return later with the two girls and the accused. That her own daughter looked well but the other one looked emaciated and had lost hair as it was breaking off. That Phiona told her she had been used as a housemaid and she had been sleeping with a certain man while Angie said she was taken to a certain man who had slept with her and infected her. That Phiona was 16 years old.</p> <p>In cross examination by defence counsel this witness stated that she was a born again Christian, a business woman selling things in the market and did not go to school. That Phiona was born in December 1992. That her birth was registered because all children are registered in Rwanda. She thought that she got her registration to police at Kireka. That she did register her birth at the time she was born but simply obtained travel documents for travelling to Uganda. That she did not deliver her in a maternity but at home. That she delivered her in 1992. That by then there was no immunization but subsequently it was introduced.</p> <p>That she was baptized in a Pentecostal church but no baptism certificate was issued and that the witness was not present at the baptism. That she was about 10 years old in the year she could not remember. That termly reports are issued in Rwanda.</p> <p> </p> <p>That Phiona did not have “endangamuntu” but the witness has one herself and she showed it to court. She did not know Phiona’s telephone number in 2011. That her own number is the same she uses even now and is 078816573. That she has never telephoned the accused, and the accused has never called her either on her telephone even once. That during her visit to the home of the witness, the witness is the one who accommodated and fed the accused. That she did not allow the accused to take Phiona to tour Uganda. That she could not turn around and start looking for her in Uganda. That when the accused left the home of the witness Phiona was at home till about four days later that Phiona disappeared. She did not know how Phiona left.</p> <p> </p> <p>Further that during Phiona’s disappearance the witness did not talk to her on phone or to the accused. That after Kemirembe confirmed that Phiona was in Uganda then is the time when the witness became aware of Phiona’s being in Uganda. She denied being used by the Rwandan government to frame the accused. That she is not aware that the husband of the accused was a state operative of Rwanda. That she heard from the accused that her husband was working at some sort of depot and nothing about his being a state security operative. That she was not hiding Phiona’s documents of birth or age or baptism.</p> <p>In re-examination she clarified that after Phiona’s disappearance a boy called…. telephoned the accused while trying to look for Phiona and another boy also called Furaha had said Phiona had bid him farewell on her way to Uganda. That the husband of the accused was a muzungu.</p> <p> </p> <p>Mukamugarura Olive, PW.4 testified that she saw the accused when she came to this court earlier this year. That of her three sons and three daughters Mahirwe Angella is her first born, produced on 01/8/98. She is studying and living with her.</p> <p>That in October 2011 Angella was a pupil at Nkataza Mubahizi Prmary School but the witness could not find her until P.W.3 came to Uganda. That was after her own sister, Mujamaria Andet confirmed she was not at home and the witness went to PW.3 who told her that her own daughter, Phiona was also missing at home. Both the witness and P.W.3 reported their missing daughters to Gahanga Police Station and to local authorities of their residential area. That was in October 2011. She did not see her daughter till 2012 when PW.3 brought her back to Rwanda.</p> <p>In cross examination by defence counsel, the witness said that PW3.is the immediate neighbor. That she did not see the accused at PW.3‘s home in Kigali. She did not know how her daughter left her home. Her husband is called Kabeera Theonest. He was not present when Angella left their home. Angella was a pupil in primary five at the time she left home. It was holiday time and the next term was due to start in October.</p> <p>Mahirwe Angella (PW.5) stated that she was aged 16 years and studies tailoring in Mukademy at Nyanza near Kicukiro, Rwanda. She resides at Gahanga in Rwanda with her parents (PW.4) her mother and her father. That she knew the accused since she met her when the accused came to visit PW.3 at Gahanga in 2011. That the home of PW.3 and hers are just next to each other.</p> <p>That while living with her parents in 2011 she left her home on 04/11/2014 to go to Uganda with the accused so that the accused gives her a job. She left with the accused who left her at Rwentobo. From home they travelled by car to Remera and by bus to Nyagatare where they used motorcycles through jungles up to a swamp where they left the motorcycles and crossed the swampy river on foot up to Uganda. They then travelled by motorcycles to Rwentobo where the accused left her with her baby at the home of the motor cyclist who had transported them. That the accused told her she would return and collect her. That baby was about five months old. That the journey from Gahanga to Rwentobo took them about seven or eight hours. She spent about three days at the home of the motorcyclist and two days at the home of the motorcyclist’s father.</p> <p>That she did not tell anybody at home at the time she left that she was leaving home. The accused had told them she was going to give them jobs of working in a supermarket. She had discussed with Phiona Umubyeyi how they would come. That after spending two or three days at the motorcyclist’s home the accused came back with Phiona with whom the accused took both of them to Kampala. She took Phiona to a place the witness did not know but took the witness to the home of the accused.</p> <p>That she did not work anywhere else but was washing, cleaning and other home related work. The accused left the baby with Phiona while the witness stayed with the accused and her three children at the home of the accused.</p> <p>That at the home of the motor cyclist the motor cyclist used to come and sleep with the witness at night and have sex with her, while at the home of the accused she was treated well though she was not paid for the household chores. She reached the home of the accused sometime in November 2011 on a date she did not remember. That around January 2012 the accused came with police to her home and took the witness to Kireka police station where she found phiona, Phiona’s mother and Phiona’s Aunt. From there she was taken to the doctor for medical examination after police had collected her clothes from the home of the accused. Police also went to Rwentobo to arrest the motor cyclist. She was treated after medical examination.</p> <p>In cross examination by defence counsel she said at the time she left her home it was holiday time. At that time her father had not talked to the accused in her presence about the accused bringing her to Uganda. She never went with her to Phiona’s mother’s home.</p> <p>She was not meant to spend her holidays in Uganda. She knew she had come to Uganda to work and not to be returned to Rwanda.</p> <p>That by the time police found her at the home of the accused she had spent there three to four weeks during which time she stayed with the accused eating the same food.</p> <p>The accused never bought her a single cloth or anything else ever since they left Rwanda. During the time she spent with the accused she used to eat, sleep and wait for another day. She was not mistreated. There was a phone at the home but she had no personal phone.</p> <p>During that time she telephoned her Aunt Mukandoli to tell her where she was in Uganda, without any details. That she left her home in Gahanga alone without being escorted by anybody. She met the accused at Inyanza as they had agreed. That the accused had told her she would be working in a supermarket but instead she made her do house chores. She had taken her to Rwentobo though she did not see what happened to the witness while there. At the home of the accused, there was a fence and the witness could not communicate to neighbors due to language barrier. The accused told her she would work in a supermarket and return home after earning some money. She was just speculating or approximating on the time she spent at the home of the accused as time had long passed. That a supermarket is a place where people pick different things.</p> <p>In re-examination the witness said from Garanga to Inyanza the accused had given her money for taxi as they had agreed to meet.</p> <p> </p> <p>Umubyeyi Phiona (PW.6) testified that she was aged 18 years, having been born on 20/12/96, works in a hair salon at Nyamirambo in Rwanda and resides at Gahanga, Kicukiro, Kigali, Rwanda. That she knew the accused since she came to their home in November, 2011 and she stayed there for one week with a baby aged about seven months.</p> <p> That the accused left after one week and she saw the accused a few days later at Kimironko where she had told the witness to meet her. That when the accused left their home she said she had taken Mahirwe (PW.5) to Uganda and that she would return and take PW.6 also to Uganda to give both girls jobs to work in a supermarket, promising to pay each of them UGX. 100,000= to begin with and some more subsequently. That after Kimironko, after one night, the next day they both travelled by motor cycles to Rwentobo, where PW.5 had been left with the baby of the accused. From Rwentobo the two girls travelled with the accused and her baby to Kampala to a home of a lady called Scovia. This witness spent one week at Scovia’s home with the baby of the accused whom the witness took care of.</p> <p>That she would sleep with the baby as the accused had left the baby with her. The accused used to call at Scovia’s home from where she returned and collected the witness and took her to the home of the accused to continue looking after the baby. Nothing happened at the home of the accused where the witness stayed with the children of the accused and PW.5 also. That after spending one week at the home of the accused she was taken away by the accused to another home of Job and Jennifer having left the baby with PW.5. At that home she did house work and the accused introduced her to Job as the accused’s younger sister. That while at that home Job forced the witness into sexual intercourse daily for a week. She did not understand the language Job spoke but she saw police uniform in the bedroom and a pistol on the bed and believed Job was a policeman. After one week Job left that home and another two days later the accused came and collected her from that home. During that time of one week at Jennifer’s home where Job also was she was not paid at all.</p> <p>After the accused picking her from there she took her to Diana’s home to do housework to be paid UGX. 40,000 which she was also not paid for the two weeks she spent there.</p> <p>From Diana’s home the police came with the accused in December 2012 or 2011 ( she was not sure of the year). They took her to the police station where she met her mother (PW.3) and her Aunt (PW.2). She was taken with Angella (PW.3) to a doctor for medical examination. Police did not take her elsewhere.</p> <p>In cross examination by defence counsel she stated that her mother told her when she was born and from then she kept knowing her age. That in 2011 she did not have endangamuntu of Rwanda and up to date she does not have it. That to cross the border her mother is the one who talked on her behalf to allow her to cross the border. She denied producing any ID to the accused or to the police at Kireka. That she did not possess any documents to show when she was born. That she left her home four days after the departure of the accused. At that time she had a phone whose number she did not remember and she did not have that phone anymore. At the time she left home she had been promoted to secondary two level and that was holiday time. There was no agreement as to how long she was to stay in Uganda but she had agreed to come and work in a supermarket in unspecified capacity.</p> <p>She was supposed to be paid monthly. She completed more than one month in Uganda in various homes by the time police got to her. All the work she did was neither voluntary nor paid for. That at Job’s place she was not treated well.</p> <p>That she told both the accused and the police about Job. At Annet’s place she used to take care of the baby. The accused did not buy her any clothes or suitcase. That though she had a phone she did not telephone anybody in Rwanda because the accused had taken away her sim card. From her home at Gahanga to Kimironko she travelled by car. That she complained to the accused about what happened to her at Job’s place. She felt hurt because the job she had been promised is not what she did eventually. That she left her at Job’s place and went to her home.</p> <p>In re-examination she stated that when she complained to the accused that Job had forced her into sex the accused did nothing. That the next time the witness saw Job was when she saw him at the police station. That the accused is the one who initiated the idea of coming to work in Uganda. To travel from her home to Kimironko the accused left the witness with Rwandan Franks 1,000= for transport at the time she left their home on the agreement that she would return and take the witness to Uganda.</p> <p>The last prosecution witness, No. 29874 D/SGT Mugume Nathan is 47 years old police officer attached to CIID Headquarters, resident at Kawempe, Nabweru, Wakiso District. He testified that in 2011 he was attached at RRU Kireka that was mandated to fight crime but was also in investigations tracking phone networks. On 19/12/2011 he was instructed by the commandant of RRU to follow up a case that was originating from Rwanda. He was given telephone No. 0715045277 to track. He called one of the complainants who came to RRU and brought that number. She is called Kemirembe (PW.2).</p> <p>He guided her on what to talk to the person on that number which PW.2 did and agreed to meet with that other person at Bweyogere. Then he went with PW.2 and a police woman called Biira to Bweyogere on motorcycles where they directed the person of that number where to meet. On arrival they surrounded her and ordered her to go with them to RRU offices. He identified that person as the accused standing in court. At RRU the I.O interrogated her and she agreed she was Annet Umutonyi in the presence of one of the mothers of the victims. That on the 20/12/2011 the accused led them to a residence in Mbuya where they found a girl aged 14 years whom they brought to RRU offices. On the same day the accused led them to her residence at Bweyogerere where they found another girl whom they brought to RRU offices at Kireka.</p> <p>In cross examination he stated that she did not talk to the mothers of the two girls or the girls themselves. That the girls did not look well fed.</p> <p> </p> <p>No.20949 D/W/CPL. Kainza Beatrice (PW.8) aged 44 years attached to police CIID at CID Kireka, resident at Kira Road Police station, testified that on 20/11/2011 she was allocated file no. E/419/2011 to investigate.</p> <p>That already one suspect was arrested and in custody. She identified that person as the accused in court. That she got the accused from the cells and in the company of PW.7 went with the accused to a home in Mbuya at the home of a woman called Diana Batamuliza where the accused had said one of the girls was.</p> <p>At that home they found one girl who identified herself as Umubyeyi Phiona (PW.6) who appeared to have been working as a housemaid. The owner of that home was present. They took PW.6 to the police station at Kireka RRU offices and from recording the statement the witness learnt that PW.6 had been taken to Diana’s home to help look after a baby and do some house work.</p> <p>That later the accused took the police to her home at Bweyogerere where another girl called Mahirwe Angella was found and taken to Kireka RRU offices. At the home of the suspect, Angella (PW.7) said she was doing house work. That in the course of her investigations this witness learnt that both girls crossed to Uganda through short cuts and Rwentobo in Uganda, crossing swamps rather than passing through official border posts and being cleared. It appeared they were illegally brought into Uganda. She interviewed both girls and accompanied them to a doctor for medical examination to establish possibility of sexual abuse. Phiona (PW.6) said she had been sexually abused at Bweyogerere by a man called Job in 2011 while Angella (PW.5) said she had been sexually abused at Rwentobo by a motor cyclist in whose custody the accused had placed her. She established that both girls had been lured by the accused from Rwanda to Uganda to be given jobs in a supermarket. They were brought into Uganda illegally and not through official border posts, for clearance. Both girls had been brought into Uganda between November and December 2011 and made to move from home to home several times in the course of which both were defiled. Further that Job is a police officer at the rank of ASP whose other name is Mutegeki. He is a brother to the accused. When this witness interviewed Jennifer, at whose house PW.6 was sexually abused, Jennifer agreed that Job was coming to that house during the same period and that Job and the accused were friends.</p> <p>In cross examination by defence counsel the witness said Biira, sergent Mugume and herself all participated in handling this case at various stages and capacities.</p> <p> She did not know if constable Biira took an ID from the accused. She established that both girls left their homes (PW.6 left alone but PW.5 did not leave alone).</p> <p>In response to the assessors questions she clarified that she was aware that, apart from the human trafficking case, defilement cases were opened up against both Job and the motor cyclist in Ntugamo.</p> <p> </p> <p>Following court’s ruling that a prima facie case had been made out against the accused the defence adduced evidence of two witnesses in defence of the accused. The first one was Umutoni Annet (DW.1) the accused, who testified that she was aged 30 years, a student of Cavendish University and resident of Bweyogerere in Kira Town council. She stated that around 25/10/2011 she was in Kigali, Rwanda at Remera just next to the stadium within Kigali, with her aunt called Uwizeye Mary. She received a telephone call while she was in Uganda from a broker asking if she was selling her plot of land at Kicukiro , Niboye in Kigali. She told the latter she was not selling the land but the caller told her of an offer of 15,000, 000 Rwandese Franks for the plot. The witness called her husband Akishure Alex and told him about the offer and he advised her to proceed and sell. Her husband was at that time in South Korea.</p> <p> </p> <p>Following her husband’s advice she went to Kigali, to Nyarubungo cell where she met Miriam Furah (PW.3) at a home cell prayer fellowship. By that time the witness had spoken to the broker on phone. She took a cab which drove her straight to the Ministry of defence headquarters which was not her intended destination. There she was led to the office of Lt. col. Burabye whom she did not know before but she used to hear about. He told her “You know why you are here. I want you to help and find Akishure Alex, you cannot sell that land until you produce him and get permission to develop but not to sell the land. Her husband Akishure Alex had been in the Rwandan army and he deserted. She stayed in the army headquarters for four hours being questioned after which she met the broker at the behind gate with soldiers. He said she should be patriotic and know that the land belonged to her and Alex since their marriage on 26/3/2005.  </p> <p>After meeting the broker she went to the cell meeting where she met PW.3 where she talked to and mentioned to PW.3 her plans of selling her plot. That she then left for Uganda.</p> <p>The second time that month she returned to the same place and met PW.3, with whom they had exchanged contacts. She (PW.3) took the witness to her home where she stayed for three days fasting and praying over the issue of the plot of land.</p> <p>While at that home she met both PW.5 and PW.6 whom she interacted with and bought food for. During that time she exchanged telephone contacts with the two girls, even with the mother. Her own no. was 0715045277 and PW.3’s no was 0784203836. That PW.3 told her she wanted to visit Uganda and the witness told PW.3 that she was welcome.</p> <p>That PW.6 was on holiday and that both PW.6 and PW.5 said they would call and come to visit during holidays. Then she left PW.3’s home and returned to her own home in Uganda at Bweyogerere. That in November she went back to Rwanda the third time. That PW.6 and PW.5 kept calling her that they were ready to come to Kigali from where she would travel with them to Uganda. That PW.3 also used her phone 0784203836 and called her on phone 0715045277 about four times. That all were saying that they would come on holiday to Uganda. That after all those calls she met PW.6 and PW.5 in Kigali town, a distance of like from Kampala to Mbalala on Jinja Road, from their home which the witness had visited before. That she came with the two girls through Kigali town up to Buziba border in Nyagatare district, entering Uganda at Rwamatunguru in Ntungamo district. That PW.5 had an “endangamuntu” an equivalent of an LCI letter (Uganda).</p> <p>That she came straight with both girls to Kampala to her residence at Bweyogerere where she was hosting a church cell E2B3, a prayer group of Watoto Church. That the girls were eating, sleeping  and playing there. That she bought them clothes and they stayed at her home for between two and three weeks. That after that some lady called her telling her that her children were at the house of the witness and she wanted to see them, that she was PW.3’s sister. That she used phone no. 0773 187617 to call her. She did not come that week but the following week she called PW.5 and the witness went to pick that lady from Kireka. That in Kireka she had not seen the lady but instead some lady came to her and arrested her at shell petrol station at Kireka.</p> <p>From that she was taken to Kireka SIU where she found PW.3 and another man from Rwanda GII and the lady who had been communicating on phone with the witness. She was detained in the cells for that night but the following day she was taken to her house where both PW.6 and PW.5 were picked from. That she took the police woman there after which they went with the two girls to the police station where she was detained for 11 days.</p> <p>That on 24/11/2011 police asked her for her passport and the travel documents for the two girls in order to grant her bond. They took her back to her house and she gave the police her passport and the travel documents of the two girls.</p> <p>That PW.6 told her she was already 19 years and that PW.5 told her she was aged 16 or 17 years. That for the eleven days she was in police detention she was not allowed to make an explanation. That she was asked only about the whereabouts of her husband. She denied all the allegations in the indictment. That both girls came to her visit during holidays.</p> <p>That even PW.3 had called her and promised to come and visit but that when she came the witness met her at the police station.</p> <p>The witness produced a print out of her mobile phone no. 0715045277 to show its record of calls from October 2011 up to when she was arrested. From serial no.1-1403 is the record from October 2011 to 19/12/2011serial no. 1390 shows no. 250784203836, which PW.3 had given, came to her on 18/10/2011, showing PW.3 is the one who called the witness. Serial no. 136-139 and 1241 show that no. +250784203836 called the witness on her no. 0715 045277 on 10/11/2011. That she obtained those print outs between 26/9/2014 and 27/9/2014.</p> <p>That on 21/12/2011 no. 0773 187613 of PW.2 called the witness on her no. 0715 045277 (see serial no. 21). That the witness called PW.2 back the same day ( see serial no. 20). That PW.2 called the witness again  (see serial no. 19). Those show that the witness was in Kireka. The telephone print outs between PW.2 and the witness (the accused) on 19/12/2011 were admitted in evidence as defence exhibit D.2. the print outs showing the calls the accused exchanged with PW.3 on 10/11/2011 and 11/11/2011 by telephone no +250784203836 of PW.3 and no. 0715 045277 of the accused were admitted in evidence as defence exhibit D.3.</p> <p>Finally she denied bringing the two girls to Uganda for exploitation and</p> <p>stated that all the allegations were made against her so as to produce her husband who had deserted the army of Rwanda.  In cross examination by the prosecutor she said her husband is one of her witnesses and works in a new project in Mpigi. He is an agricultural scientist. He was in South Korea that he had gone for further studies in 2010. He returned on a date she was not sure about but he visited her in prison in 2013. She does not know if the Rwandan army has taken any action through calls and visits from people connected with the Rwandan Government.  The information in the 3<sup>rd</sup> column on the right of exhibit D.3 refers to her phone number and network she was on.</p> <p>That there was no man in PW.3’s home. She spoke to PW.3 only about the girls coming to Uganda and herself. She met the father of PW.5 but did not obtain his permission either from the mother. That she did not give the girls transport to bring them. They transported themselves up to Kigali town from where she paid for their transport up to Kampala. That their parents are poor. She and the girls did not pass through short cuts but through official border posts at Buziba in Rwanda and Rwamatungura in Uganda before, before taking a bus at Muhanga. That the police took her passport and the travel documents of the two girls from her home where she had been keeping their documents and other things for the girls without any bad motives.</p> <p>She denied leaving one of the girls with the motorcyclist in Rwentobo. That she came with both girls directly from Rwanda to Kampala. That all the names mentioned like Diana, Scovia, Jennifer were staying with her in the same cell of the church (E2B3A) in Bweyogerere. That she did not lead the police to a home in Mbuya to Diana’s home to pick PW.6. That PW.6 and the police lied. She did not take PW.6 to Diana’s home. All that was said about PW.6 being defiled by Job she heard about it at police after she was arrested. That these girls used to move on their own to different houses. Even her own kids used to do the same.</p> <p>That she was arrested by a police man and a police woman called Biira while Kainza took her to a doctor for check up. That she did not have any interest in the age of the two girls prior to crossing the border. That apart from the phone calls of the 10<sup>th</sup> and 11<sup>th</sup> November 2011 other calls were made to her.</p> <p>That she gave PW.3 Rwandese Franks 15,000,000 to help her clear debts they had at a local shop before leaving for the holiday in Uganda. She denied promising any jobs to the two girls as they did not know any relevant language in Uganda. That there was no payment agreement between her and the girls, as this was purely a holiday agreed with PW.3.</p> <p>In re-examination by defence counsel she said she knew about PW.6’s age from her ID (endangamuntu).</p> <p>In a clarification by one of the assessors she said she travelled with her baby only on the third 3<sup>rd</sup> time but not on the 1<sup>st</sup> or 2<sup>nd</sup> time.</p> <p>In a clarification to court she said the man she was with at the home cell meeting in Kigali was not her husband. He was just a friend. That PW.3 originally was friendly but after the arrest of the witness PW.3 showed she was not her friend.That her husband was the subject of her questioning by police though he visited her in Luzira.</p> <p>That she has a child with the muzungu man, a girl aged 12 years. That the baby she had when she visited Kigali was from her husband and was not of a mixed blood.</p> <p> </p> <p>Dr. Alex Akishure (DW.2), aged 45 years, works with Ministry of Agriculture, Animal Industry and Fisheries as a consultant for support Institutional Programme on a project in Mpigi District. He testified that the accused (DW.1) is his wife since 02/4/2005 when they wedded. That at that time he was an officer in Rwandan army as a lieutenant in Military Intelligence. That he stopped working as such in 2006 when he was posted to Addis-Ababa till 2008. He settled in Bweyogerere where he has a house. He was not officially discharged but that he informed his superiors by e-mail. That they sent an official to meet him but he refused to meet him. They sent mails and friends who told him he was being looked for. He reported himself to the CMI of Uganda being a Ugandan who had left Rwandan army and got cleared. That from that time the Rwandan Government continued looking for him. He did not participate in politics and wanted to live a normal life as a Ugandan.</p> <p>That from July 2010 he left Uganda on a scholarship to South Korea. At that time he was hiding because the Rwandan Government was looking for him. That through friends in Kigali and e-mails and internet they warned him that he could be taken back to Rwanda and be disciplined according to military code of conduct. That many officers were kidnapped by UPDF and repatriated back to Rwanda. That during this time of hiding he would not stay with the accused sometimes as he would, for security reasons, stay somewhere without telling her. While he was away the accused went to Rwanda to sell their property and while there, some officers of Military Intelligence tapped her phone. That the prospective buyer was such officer of Military Intelligence. That the witness was cleared by Military Intelligence of Uganda in 2008 and he settled and worked for the Uganda Government.</p> <p> </p> <p>However, the accused was arrested when she went to sell their property. That General James Kabarebe told her to convince the witness to go back but the witness refused. That is when he got a scholarship to go and study in South Korea, far from Uganda. That when he went that far his wife started to suffer as she could not convince him to go back to Rwanda. As she did not succeed they were not happy and they continued to witch-hunt her since they could not get to him.</p> <p>In cross examination by the prosecutor he stated that he returned from South Korea in July 2012. That from 2010 he did not return till July 2012. That the accused never went to South Korea.</p> <p>He left for South Korea in November 2010 and the accused delivered his child in June 2011. He knew only their three children she had with him but by the time the two met he did not know how many children she may have had. That since he returned from South Korea he tries to be security conscious. At that point of the trial defence counsel intimated that the defence had closed its case as the accused had not succeeded in getting the other witnesses. The defence filed its submission on 03/10/2014 and prosecution filed its submission on 07/10/2014.</p> <p> </p> <p><strong><u>THE LAW</u></strong></p> <p>Article 28(3) of the constitution of Uganda provides:-</p> <p><em>“Every accused person who is charged with a criminal offence shall:-</em></p> <p><em>(b) be presumed innocent until proved guilty or until that person has pleaded guilty”</em></p> <p> In all criminal cases, excepting a few statutory ones not including human trafficking, the burden of proof lies squarely upon the prosecution in regard to every essential ingredient of the offence. That burden which is on the standard of beyond reasonable doubt remains upon the prosecution throughout the trial and never shifts to the accused. See :-</p> <ol><li><strong><u>Woolmington V.D.P.P (1935) A.C.462;</u></strong></li> <li><strong><u>Okethi Okale &amp; others V. Republic [1965) E.A. 555;</u></strong></li> <li><strong><u>Lubowa &amp; Others V. Uganda [1967] E.A.440;</u></strong></li> <li><strong><u>Joseph Kiiza &amp; Anor [1978] E.A. 279. </u></strong></li> </ol><p>The offence of Aggravated child trafficking which is the subject of each of the two counts in the indictment before court and each of which the prosecution has to prove beyond reasonable doubt has five ingredients:-</p> <ol><li>The victim was a child;</li> <li>Transportation and transfer</li> <li>By means of the use of threat or use of force or other forms of coercion, of abduction, of fraud, of deception….or of giving or receiving of payments or benefits….</li> <li>For purposes of exploitation</li> <li>Accused’s participation.</li> </ol><p>Before embarking on evaluation or analysis of the evidence so as to conclude or determine whether or not each essential ingredient and the whole offence has been proved by the prosecution to the required standard, I must first dispose of one legal and preliminary issue that was belatedly raised by defence counsel in his final submissions. That issue is that the indictment in this case was bad for duplicity. That the inclusion of the words “abduction and deception and transported and transferred” in each count was not permitted by law since each act is and forms and should have formed a separate count as they all amounted to separate offences. He submitted that under section 3(a) of the Act the use of the words “or” is an indication that more than one offence was created and therefore the words “abduction” and “deception” “transported” and “transferred” were four separate offences which should have been in four separate counts. He cited the case of <strong><u>Uganda V.Amis [1970] E.A 294</u></strong> in support of that argument. He further submitted that this duplicity caused miscarriage of justice and as such the ensuing proceedings were a nullity. For that submission defence counsel relied on and cited the case of <strong><u>Laban Koti V.R [1962] E.A 439. </u></strong>In reply to this submission counsel for the prosecution stated that at the commencement of the hearing court established from the defence whether it had any issues with the indictment which the defence answered in the negative. Counsel for the prosecution referred to the case of <strong><u>Laban Koti VR</u></strong> cited by defence counsel and argued that “in deciding whether there is duplicity in a charge sheet, the test is whether a failure of justice has occured or the accused has been prejudiced” Further that the case of <strong><u>Uganda V. Amis [1970] E.A. 291</u></strong> cited by defence counsel was misinterpreted because in that case the submission that the charge was bad for duplicity was actually overruled by the trial judge and the appellant had been rightfully convicted and the indictment was properly drawn, because even if the offences charged were separate offences, it was permissible to charge them, conjuctively where the matter related to one single incident. She submitted that the “the abduction” and “deception”, “transporting and transferring” related to one single incident and it was therefore in order to include them in one count and as such there was no duplicity occasioned.</p> <p>I have carefully considered the submissions of both parties on this issue. It is true that when the case was called on for hearing in the morning of 10/9/2014 counsel for the defence had not had an opportunity to look at the indictment. Quite rightly, in my view, he sought and was granted an adjournment to be availed a copy of the indictment and seek instructions from the accused. Court directed the prosecution to avail defence counsel a copy of the indictment and evidence intended to be used at the trial. Court, in those circumstances, adjourned plea taking to the afternoon of that day at 2:30 pm. At 3:45 pm of that day and before the accused pleaded to the indictment Mr. Senkeezi; counsel for the accused then, stated:-</p> <p>            <em>“We are ready and willing to proceed with the indictment as it is.”</em></p> <p>That was in response to court’s prompting as to whether counsel had any issues relating to the indictment before his client, the accused, would be arraigned on the indictment. Counsel’s response did not raise any issues such as duplicity or any others. That point in time was, in my view, the appropriate time to raise the issue of duplicity. He did not raise that or any other issue relating to the indictment.</p> <p>Secondly, as submitted by counsel for the prosecution the test in determining duplicity in the charge is whether there was a failure of justice or the accused was prejudiced. Counsel for the accused has not shown how, if at all, there was any failure of justice or the accused was prejudiced. The accused was afforded, through defence counsel, an opportunity to look at and raise any issues or objections in relation to the charge (indictment) prior to taking plea by way of an adjournment from the morning to the afternoon on 10/9/2014. In the afternoon, prior to taking plea, court prompted  defence counsel to raise, if he wished to, any issues or objections on the indictment and counsel did  not raise any issues or objections. Instead he stated that he was ready and willing to proceed with the indictment as it was. In such a situation I find and hold that there was no failure of justice and the accused was not in any way prejudiced.</p> <p>Following the case of <strong><u>Uganda V.Amis (supra)</u></strong> it is permissible to charge an accused in one count in respect of acts which are stated in a way that shows separate actions done separately in one single transaction which constitutes an offence. For that reason the indictment would not be bad for duplicity. Accordingly, I find and hold that in the indictment before me there was no duplicity as the actions of abduction and deception, transportation and transfer of the victims in both count no.1 and no. 2 were all done in one transaction in this case as shown in the evidence on record.</p> <p>Consequently, I hereby over rule the objection as it has no merit.</p> <p>            <strong><u>ANALYSIS</u></strong></p> <ol><li><strong>The victims being aged 18 years.</strong></li> </ol><p>In relation to count no. 1 of the indictment it was alleged that Mahirwe Angella was aged 14 years. The prosecution had to prove that first ingredient beyond reasonable doubt and thus called Dr. Ndiwalana Bernard (PW.) who tendered in evidence medical examination report (exhibit P.1), Mukamugarura olive (PW.4) the mother of Mahirwe Angella and Mahirwe Angella herself (PW.5) all who testified to show that Mahirwe Angella was aged 14 years having been born on 01/8/1998. That evidence was consistent, without any contradictions and the defence did not seriously challenge or shake prosecution evidence on that element of the offence in count No.1 of the indictment.</p> <p>In the circumstances, I accept that evidence and accordingly find and hold that the essential ingredient of the victim in count No.1 of the indictment being aged below18 years was proved beyond reasonable doubt.</p> <ol><li><strong>Transportation and transfer</strong></li> </ol><p>In relation to this ingredient of the offence in count No.1 of the indictment, the victim (PW.5) testified that she left home at Gahanga with the accused and was transported by the accused all the way from Rwanda to Uganda. That was her evidence in chief. However, in cross examination she stated that she left her home at Gahanga alone without being escorted by anybody and travelled to Inyanza where she had agreed to meet the accused. That from Inyanza in Rwanda she travelled onwards with the accused who took her the rest of the journey through Rwentobo in Uganda up to Kampala. That evidence is not disputed and it is actually admitted by the accused (DW.1) in her own testimony, as she said that she transported the victim (PW.5) and the other victim (PW.6) all the way from Rwanda and transferred both of them to Uganda.</p> <p>The contradiction between the evidence of PW.5 in her evidence in chief and her cross examination as to how and with whom she left her home at Gahanga to Inyanza in Rwanda, in my considered view, is minor and would not affect the value or credibility of her evidence on this ingredient.</p> <p>I would therefore ignore such minor contradiction. (See the cases of:-</p> <ol><li><strong><u>Col. Sabuni V. Uganda [1981] HCB.11;</u></strong></li> <li><strong><u>Uganda V Rutaro [1976] HCB. 95;</u></strong></li> <li><strong><u>Wasswa Stephen &amp; Anor. V. Uganda, crim. Appeal No. 31/1995 (S.C) (unreparated);</u></strong></li> </ol><p>At any rate whether she left her home with the accused or left that home alone and met the accused at Inyanza where she met the accused and travelled with her from Inyanza  in Rwanda through Rwentobo in Uganda and finally to Kampala, the essence of being transported and transferred from Rwanda to Kampala has been proved and conceded by the accused.</p> <p>In the circumstances, I accept that evidence and accordingly find and hold that prosecution proved beyond reasonable doubt this essential ingredient of the offence.</p> <p>3 <strong><u>By means of the use of threat or use of force or other means of coercion, of abduction, of fraud, of deception… or of the giving or receiving of payments or benefits………</u></strong></p> <p>In relation to this essential ingredient, the specific means to achieve the commission of the evidence were spelt out in the indictment as:-</p> <p>            <em>“abduction and deception transferred and transported…”</em></p> <p>I have already dealt with and disposed of the aspect of “transferred” and “transported above. So far as abduction and deception is concerned I have carefully considered the evidence of Furaha Miriam (PW.3), Mukamugarura Olive (PW.4), Umubyeyi Phiona (PW.5) and Mahirwe Angella (PW.6) that both left their homes at Gahanga in Rwanda and were transported and transferred finally to Uganda by the accused. That PW.5 and PW.6 left their homes, albeit voluntarily, but without the knowledge or consent of their parents, especially when PW.5 was, without any dispute still aged below 18 years (a minor).</p> <p>Finally, that PW.5 and PW.6 were promised jobs in a supermarket in Uganda but that all the time since their arrival in Uganda in early November ( on 04/11/201 according to PW.5)  up to 19<sup>th</sup> or 20<sup>th</sup> December 2011 both victims were instead made to do basically household chores without pay at all.</p> <p>The accused, on the other hand denied that she abducted the girls and delivered them as alleged in the indictment. She said she brought them from Rwanda for a holiday to Uganda upon their own free will and request and knowledge of one of the mothers (PW.3). That both girls (PW.5) and (PW.6) mainly stayed at her home in Bweyogerere in Kampala, eating and playing with her own kids and under such conditions as buying them clothes and a suit case, all of which both PW.5 and PW.6 denied.</p> <p>While carefully considering these divergent versions of both sides I note and find that the accused conceded that she did not obtain the consent of the parents of either PW.5 or PW.6 prior to transporting and transferring the two girls from Rwanda to Uganda. These two girls, especially PW.5, were minors. Even though the accused had been housed by PW3 for a few days in Kigali, the accused was not closely related to either the family of either of the girls to justify taking those girls without their parent’s knowledge or consent. In those circumstances I hold that the taking away of the two girls by the accused without the knowledge or the consent of their parents amounted to abduction.</p> <p>Secondly, I do not believe that the girls asked the accused to spend a holiday in Uganda with her since they met her for a few days only when she was a guest at the home of PW.3 and not a relative of any of them. Even at the home of PW.3 the accused had not gone there as a prior known visitor. She was just a casual visitor. I am more inclined to believe the evidence of both PW.5 and PW.6 that the accused falsely promised to give both girls jobs at a supermarket in Uganda but upon reaching Uganda, did not honour her promise to them. That, in my considered opinion, amounted to deception.</p> <p>In the circumstances I find and hold that prosecution proved beyond reasonable doubt the essential ingredient of abduction and deception in respect of each of the two victims in counts No.1 and 2 of the indictment.</p> <p>4 <strong><u>For Purposes of exploitation</u></strong></p> <p>With regard to this essential ingredient in both counts No.1 and 2 of the indictment I have noted above in this judgement the evidence of PW.5 and PW.6 on one hand compared to that of the accused (DW.I) on the other hand giving divergent versions of what activities the two girls were actually engaged in from their arrival time in Uganda till police found them. Once again I believe the version of the two girls and disbelieve that of the accused for the reasons given above. Further I find and hold that engaging both girls in taking care of the baby of the accused as well as doing other household chores that the girls did, according to their evidence, without any pay amounts to exploitation, in my considered view. Further still, both girls (PW.5 and PW.6) testified that the accused placed each of them (PW.5 at Rwentobo) and PW.6 at Kyobutungi Jennifer’s house) in situations where each of PW.5 and PW.6 were sexually abused. That evidence, in my considered view, amounted to exploitation even if it was not to the advantage or benefit of or in the knowledge and with the consent of the accused, all of which are not necessary to prove exploitation as defined in section 2(d) of the Act<strong>. </strong></p> <p>For the above reasons I find and hold that prosecution proved beyond reasonable doubt the essential ingredient of exploitation in counts No.1 and 2 of the indictment, in respect of both victims of the offence.</p> <p>Let me at this stage return to the age of the victim in count No.3, namely Umubyeyi  Phionah. There was the evidence of Dr, Ndiwalana Bernard (PW.1) and particularly the medical examination report on PF3A which was admitted in evidence as P.1 in respect of Umubyeyi Phiona, on which PW.1 concluded that the victim was aged 16 years in 2011 but conceded in cross examination that she could be aged above 16 years or even above 18 years as she had well developed secondary characteristics such as breasts. However, in re-examination that witness stated:-</p> <p><em>“Any one aged below 18 years cannot have a complete dental    formular. The victim had incomplete dental formular, so she could have been 18 years old in this case”.</em></p> <p>In addition to the evidence of PW.1 there is the evidence of the victim herself (PW.6) who testified that she was born on 20/12/1996 in her evidence in chief. Under cross- examination by defence counsel she said her mother (PW.3) told her when she was born and the witness kept knowing her age. Apparently, that is why she stated her age to be 18 years upon being sworn in as a witness at the end beginning of her evidence. If that was the only evidence regarding the age of this victim there would not be any doubt at all about her age.</p> <p> </p> <p>However, there is the evidence of her own mother, Furaha Miriam (PW.3) that stated in her evidence in chief that PW.6 was aged 16 years but under cross examination by defence counsel she stated that she delivered PW.6 in 1992 at home and that she did not register the birth of PW.6. Further  that PW.6 did not posess the official identification document of Rwanda known as “endangamuntu”, which elsewhere in the evidence on record every resident in Rwanda aged 18 years and above ought to have and indicates the age of that person.</p> <p>Faced with the contradiction between the evidence of PW.1 and PW.6 which puts the age of the victim about 15 or 16 years in 2011 on one hand and that of PW.3 ( the  mother of the victim) which puts the age of the victim at 19 years. I would resolve this contradiction in favour of the accused.  See the cases of :-</p> <ol><li><strong><u>Alfred Tajar V. Uganda, EACA, Crim. Appeal No. 167/69;</u></strong></li> <li><strong><u>Col. Sabuni V. Uganda, [1981] HCB 11;</u></strong></li> <li><strong><u>R.V Chamulon Wero Olango [1937] 4EACA 46;</u></strong></li> <li><strong><u>Siraji Sajabi V. Uganda Crim Appeal No. 31/98(C.A).</u></strong></li> </ol><p> </p> <p>I therefore find and hold that due to the contradiction/ inconsistency in the evidence regarding the age of the victim, Umubyeyi Phiona, the proof of her age has been cast in doubt and hence fall below the required standard beyond reasonable doubt.</p> <p>Consequently, that part only of count no. 2 has not been so proved.</p> <p> </p> <p><strong><u>5. Participation of the accused</u></strong></p> <p>The above and last ingredient of the offences in counts No.1 and No.2 was, in my considered opinion, sufficiently touched on by nearly all witnesses at one stage of the transaction constituting the offence in both counts in the indictment.</p> <p>While dealing with the essential ingredient of transporting and transferring the victims I found and held that prosecution proved beyond reasonable doubt that the accused transported and transferred both victims from Rwanda to Uganda. What I must bring out clearly now is that both victims (PW.5 and PW.6) testified that they did not have or use any travel documents and as such they appear not to have entered Uganda through official boarder post but rather crossed from Rwanda and entered Uganda through crossing swamps or swampy rivers on foot, which suggests unlawful entry into Uganda. As such the accused brought the two girls into the country illegally.</p> <p>Similarly I held and found that the accused used abduction, deceit and fraud as a means of committing the actions constituting the offence in the indictment before court.</p> <p>Thirdly, I held that the victims were exploited through unpaid labour in various homes they were kept, including the home of the accused. The victims suffered forceful sexual intercourse both at Rwentobo (in the case of PW.5) and at Bweyogerere (in the case of PW.6) when the accused brought them from Rwanda to Uganda illegally.</p> <p>In all those circumstances and stages of the commission of the offence I find and hold that the accused did participate in the commission of the offences in both counts No.1 and 2 of the indictment. Therefore I find and hold that the prosecution proved beyond reasonable doubt this last ingredient of the participation of the accused in the commission of the offence in each count of the indictment.</p> <p>I have carefully considered the evidence DW.1 and DW.2, especially imputing conspiracy between prosecution witnesses on one hand and elements of the Rwandan army on the other, to frame the accused with malicious charges purposely to force the accused to cooperate with the Rwandan army to get the husband of the accused (DW.2) to face disciplinary proceedings for deserting the Rwandan army which (DW.2) at some time served in but later deserted. That defence evidence did not in my view, show any connection between any of the prosecution witnesses with any elements of the Rwandan army or government. I was neither convinced nor persuaded to believe that evidence and I reject it, particularly the veiled imputation of some sort of conspiracy between prosecution witnesses and the Rwandan army or government.</p> <p>In conclusion I find and hold that prosecution proved beyond reasonable doubt all the essential ingredients of the offence in count No.1 of the indictment.</p> <p> </p> <p> However, I find and hold that in count No.2 of the indictment the prosecution did not prove beyond reasonable doubt the essential element regarding the age of one of the victims (Umubyeyi Phiona) though prosecution proved all other essential ingredients of the offence in that count.</p> <p>Consequently, I find and hold the accused guilty on count No.1 as charged but acquit the accused of the offence she was indicted for in count No.2 of the indictment. Instead I find the accused guilty of the offence under section 3 (a) of the Act as charged.</p> <p>                                                                                    <strong>E.K. Muhanguzi</strong></p> <p><strong>                                                                                    JUDGE</strong></p> <p><strong>                                                                                    16/10/2014</strong></p> <p><strong>Court:</strong> By consent of both parties let the prosecution file and serve defence counsel impact statements with aggravation and mitigation submissions including compensation offer and on 17/10/2014 and the defence do likewise on 21/10/2014 and prosecution shall reply on 27/10/2014. Thereafter sentencing judgment will be delivered on 03/11/2014 at 9:00 am.</p> <p>                                                                                    <strong>E.K. Muhanguzi</strong></p> <p><strong>                                                                                    JUDGE</strong></p> <p><strong>                                                                                    16/10/2014</strong></p> <p><strong><u>COURT  </u></strong></p> <p>Judgment delivered, signed and dated in presence of:-</p> <ol><li>Accused</li> <li>Ms. Joan Kagezi; SPSA for prosecution</li> <li>Ms. Louis Tumwesigye for accused</li> <li>Ms. Peace Kaudha- Court Clerk</li> <li>Mr. P.C Kiggundu- present.</li> </ol><p> </p> <p><strong>E.K. Muhanguzi</strong></p> <p><strong>JUDGE</strong></p> <p><strong>16/10/2014</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong><u>SENTENCE AND REASONS</u></strong></p> <p>Following the conviction of Umutoni Annet (hereinafter called the convict) on count No.1 for aggravated child trafficking C/S 5 (a) and on count No.2 for human trafficking under the Prevention of Trafficking in Persons Act, the prosecution filed written submissions on 20/10/2014 and defence also filed submissions on 23<sup>rd</sup>/ 10/2014 as directed by court at the sentencing hearing. The respective submissions form part of the court’s record.</p> <p> </p> <p>I have carefully studied the submissions of both parties. I have noted that no victim or community impact statements were referred to, understandably because the victims are residents of Rwanda and were only available during the trial in Uganda and after testifying they immediately travelled back to Rwanda before conclusion of the trial. Also presumably due to logistical reasons the prosecution could not readily obtain community impact statement from Rwanda in good time for this hearing. It appears therefore that the submissions at the sentencing hearing were largely based on what transpired at the trial.</p> <p> </p> <p>To that extent therefore Court will largely base the sentence to what can be gathered from the trial. Conviction under section 5 (a) attracts a maximum death sentence while that under section 3 (a) attracts a maximum sentence of fifteen years prison term. The prosecution submission on aggravating circumstances refers to:-</p> <ol><li>in count No.1 the victim being aged only 14 years at the time she was trafficked.</li> <li>that the victim lost her chastity as a result of being forced into sexual intercourse and being infected with a sexually transmitted disease.</li> <li>The victim looked malnourished at the time she was recovered from the convict’s home.</li> <li>The victim was exploited by not being paid for the house chores she performed.</li> <li>The victim’s mother (PW.4) exhibited anguish and distress at the trial.</li> <li>Human trafficking cases in Uganda and internationally are increasingly registered in courts and the Attorney General has consented to prosecution of 6 (six) of them so far.</li> <li>The victim and their parents have had to travel three (3) times from Kigali, Rwanda and Kampala for investigation and prosecution of this case.</li> <li>One of the victims, Angella Mahirwe, who had been in primary five (5) at the time she was trafficked had to abandon formal school and resort to vocational training.</li> <li>The victim in count No.2, Umubyeyi Phiona, was moved from home to home and was made to do domestic chores without pay.</li> <li>The victim too lost her chastity when she was forced into sexual intercourse for a week by one Job and PW.1, in his medical report stated that the injuries in her sexual organs were recently inflicted on her by a blunt object.</li> <li>The victim too, who was a secondary student in senior one (1), dropped out of school and became a salon attendant, thereby suffering an interruption of her studies.</li> <li>Both that victim and her mother suffered anxiety and distress as a result of this offence.</li> </ol><p>In view of the above cited aggravating factors prosecution sought a custodial sentence of fifteen (15) years.</p> <p>Defence counsel, in mitigation on the other hand, submitted and prayed for lenience on grounds:-</p> <ol><li>that the convict is a first offender, which prosecution could not dispute.</li> <li>that she is aged only 30 and a student at Cavendish University.</li> <li>that consideration be had to guideline 9 (5) where for a first offender, imprisonment is not a desirable sentence (perhaps here he meant guideline 11 (2) (d) ).</li> <li>that she suffers from peptic ulcers and high blood pressure (but provided no evidence).</li> <li>that she has been in custody for 20 months.</li> <li>that the victims left their homes on their own up to where they met the convict.</li> <li>that there was no use of violence.</li> <li>that the convict was not personally responsible for the sexual assault of the victims.</li> <li>that the victims did not contract the STD from the convict</li> <li>that the victims stay in Uganda for 2 or 3 weeks was during holidays and could not have caused their disruption or loss of study opportunities.</li> <li>that payment for work done in Uganda for the 2 or three weeks could not have been made as the period was less than a months.</li> <li>that the statistics referred to by prosecution did not show conviction numbers but only reported cases.</li> <li>that there has not been any other conviction before this one.</li> <li>that the victims did not loose their chastity at the instance of the convict or during the period in issue.</li> <li>that the victim’s coming to Uganda willingly is a mitigating factor.</li> <li>lastly defence counsel submitted that the convict, being a primary care giver who looks after her three (3) children including one aged three (3) years while their father works far away from their home, is the best person to look after her children. Therefore he prayed that the convict be sentenced to a fine and/ or caution instead of a custodial sentence.</li> </ol><p> </p> <p>After serious and thorough consideration of the submissions of both parties I am of the considered view that:-</p> <ol><li>the offences of aggravated child trafficking and human trafficking that the convict had been convicted of are very serious offences. They attract maximum sentences of death and fifteen (15) years prison terms respectively. Neither of them has an option of a fine or similar sentence, though defence counsel prayed for and suggested a fine and or a caution as an alternative sentence.</li> </ol><p> </p> <ol><li>I have considered both aggravating and mitigating factors referred to by both counsel, such as the convict being a first offender, being aged 30 years and a student at Cavendish University.</li> </ol><p> </p> <ol><li>I am also aware that she is a mother of three whom her husband is aware of plus another child from another man (according to the evidence of the convict herself and of other witnesses.</li> </ol><p> </p> <ol><li>Further, I note that the convict shares the care of the children with her husband who is a well educated and highly remunerated person as he is employed as a consultant while the convict is a mere student at University who at times leaves the children in the care of other people, especially when she travels outside Uganda.</li> </ol><p> </p> <p>After balancing the aggravating and mitigating factors and after considering the seriousness of the offences and the maximum sentences of death for aggravated trafficking in children and fifteen years prison term for trafficking in persons, and finally considering that the convict has spent a total of twenty (20) months on remand I hereby sentence the convict to prison terms of eight (8) years on the count of aggravated child trafficking and five (5) years on the count of trafficking in persons. The two prison terms shall run concurrently.</p> <p>The convict is hereby informed of her right of appeal to the court of appeal against both conviction and sentence or any of the two within fourteen (14) days from today.</p> <p> </p> <p><strong>E.K. Muhanguzi</strong></p> <p><strong>JUDGE</strong></p> <p><strong>16/10/2014</strong></p> <p>     </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>03/11/2014</p> <p>Accused in court</p> <p>Ms.Nabisenke PSA for prosecution</p> <p>Ms Peace Kaudha- Court clerk</p> <p>Mr. P.C. Kiggundu and Ms. Kasendwa-Assessors</p> <p> </p> <p> </p> <p>Court: Sentence passed / pronounced in the presence of all the above.</p> <p> </p> <p> </p> <p><strong>E.K. Muhanguzi</strong></p> <p><strong>JUDGE</strong></p> <p><strong>16/10/2014</strong></p> <p> </p> <p> </p> <p>         </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p></span></div></div> </div> </div> Wed, 13 Jan 2021 17:07:07 +0000 Anonymous 9071 at http://ulii.org Gabula v Attorney General (HCT-00-CV-CS-2008/54) [2012] UGHICD 1 (06 March 2012); http://ulii.org/ug/judgment/hc-international-crimes-division-uganda/2012/1 <span class="field field--name-title field--type-string field--label-hidden">Gabula v Attorney General (HCT-00-CV-CS-2008/54) [2012] UGHICD 1 (06 March 2012);</span> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 01/13/2021 - 17:07</span> <div class="clearfix text-formatted field field--name-field-search-summary field--type-text-with-summary field--label-above"> <div class="field__label">Search summary</div> <div class="field__item"><p>HR, Death penalty</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-msword file--x-office-document"> <a href="https://media.ulii.org/files/judgments/ughicd/2012/1/2012-ughicd-1_0.doc" type="application/msword; length=80384">2012-ughicd-1.doc</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>REPUBLIC</strong><strong>OF</strong><strong> UGANDA</strong></p> <p> </p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p> </p> <p><strong>HCT-00-CV- CS- 0054 – 2008.</strong></p> <p> </p> <p><strong>AFRICANUS BRIGHTON GABULA…………………………………PLAINTIFF</strong></p> <p> </p> <p><strong>VERSUS</strong></p> <p> </p> <p><strong>ATTORNEY GENERAL……………………………………………..DEFENDANT</strong></p> <p> </p> <p><strong>JUDGMENT</strong></p> <p> </p> <p>This matter was first brought to Court by way of Notice of Motion filed on the 16/11/2007. The Counsel representing both parties appeared before me on the 17/1/2008. The matter was then adjourned to the 3/4/2008 for hearing. Then the matters were put before my brother Hon. Justice Musoke – Kibuka on the 19/05/2010, whereby the Learned Counsel for the Attorney General (Respondent) informed Court that, similar matter had been filed by way of plaint and had been fixed before me. The Learned Judge dismissed the application (168/2007).</p> <p> </p> <p>In the meantime the plaintiff had also filed this Suit HCCS 54/2008 on the same subject matter, on the 19/3/2008 between the same parties. This case came before me on the 18/4/2008  when I was still in the Civil Division whereby both Counsel applied to file written submissions, as the Court papers filed by both sides, were exclusively based on legal matters, regarding the interpretation of the Amnesty Act and the Constitution of Uganda.</p> <p> </p> <p>Each side was given 14 days to file its respective submissions and replies if any. Thereafter the judgment would be on notice. The file was returned to the Civil Registry for the Counsel to comply with the order to file written submissions. In the meantime, I was transferred from the Civil Division to the then War Crimes Division, now the International Crimes Division, as its head. Thereafter it appears my cases were re-allocated to Hon. Justice Musoke – Kibuka, who was by then in the Civil Division.</p> <p> </p> <p>I have received the file today (the 01/03/2012) from Hon. Justice Musoke - Kibuka for the purpose of writing the judgment. It is regrettable that, the Civil Registry could not forward the file to me soon after the filing of the written submission by the parties Counsel, which, according to the official stamp on them, was done in May 2008. I hope this sort of laxity on the part of the Registries will not  happen again, so as to avoid unwanted delays on the dispensation of justice.</p> <p> </p> <p>As to the merits, the plaintiff brought this action against the Attorney General of Uganda under the provisions of Article 50(1) of the Constitution of the Republic of Uganda for enforcement of his fundamental rights and freedom, for declaration under O. 9. r. 2 of Civil Procedure Rules and for general and exemplary damages for infringement of his fundamental rights and freedom.</p> <p> </p> <p>The facts as can be gathered from the pleadings which are constituting the cause of action are briefly as follows.</p> <p> </p> <p>The plaintiff was arrested on the 24<sup>th</sup> day of August 1988 and charged with the offence of treason. He was tried, convicted and sentenced to death in 1993 by the High Court. The Supreme Court confirmed the conviction and sentence in May 1995.</p> <p> </p> <p>Subsequently on 21/1/2000 the Amnesty Act, Cap 294, was enacted declaring Amnesty in respect of any Ugandan who had at any time since 26/1/1986, engaged in or remains engaging in War or armed rebellion against the government of Republic of Uganda.</p> <p>On 24/2/2000, the plaintiff applied for Amnesty (about 8 years after conviction) and the Amnesty Commission did not issue him with a certificate of amnesty because the plaintiff was a convict and the commission stated that it needed consultation on the interpretation of the Amnesty Act. The plaintiff wrote to the then Deputy Chief Justice, for a legal opinion on the matter. The Learned Deputy Chief Justice, advised to file the matter in Court. The Principal Judge, on the other hand, advised to re-apply to the government. Thereafter, the plaintiff made another application for Amnesty and he has never received any reply to that application. That the Amnesty Commission advised that a person charged with treason is entitled to Amnesty. That subsequently the plaintiff’s  Lawyers petitioned the Director of Public Prosecution to certify that, he was under S. 2 and 3 of the Amnesty Act, entitled to amnesty. The Director of Public Prosecution however, declined to issue the Certificate as plaintiff was a convict. This resulted in filing this Suit.</p> <p> </p> <p>The agreed issues by both parties are as follows.</p> <p> </p> <ol><li>Whether the Amnesty Act, Cap 294, covers persons convicted of treason.</li> </ol><p> </p> <ol><li>Whether the acts of the Amnesty Commission violated or engaged the plaintiff’s rights under Article 20, 21 and 42 of the Constitution.</li> </ol><p> </p> <ol><li>Whether the Director of Public Prosecution erred in finding that the plaintiff is not a person envisaged by Section 3 (of the Amnesty Act) as a person entitled to certification under the Amnesty Act Cap 294 for release.</li> </ol><p> </p> <p>Both Learned Counsel submitted at length on each issue.</p> <p> </p> <p>I will also consider the raised issues in the same order.</p> <p>i) Whether the Amnesty Act Cap 294, covers persons convicted of treason.</p> <p> </p> <p>Amnesty is defined by Section 1 (a) of the Act as:-</p> <p> </p> <p><strong>“ a pardon, forgiveness exemption or discharge from criminal prosecution or any other form of punishment by the State</strong>.”</p> <p> </p> <p>The Learned Counsel for the plaintiff submitted, as I understood them, that, their client falls under “ any other form of punishment by the State”   as he is serving a sentence or waiting to be re-sentenced following <strong>SUSAN KIGULA &amp; OTHERS VS. ATTORNEY GENERAL S.C.U. Constitution Appeal No. 6/2003 </strong>ruling, as the case might be. On the other hand, the Learned Attorney General submitted to the effect that, as the plaintiff had been tried, found guilty and convicted by competent courts, then, he falls outside the scope of the Amnesty Act. That the Act, applies only to those who are not yet prosecuted or are undergoing prosecution.</p> <p> </p> <p>Section 2 of the Amnesty Act, Cap 294 provides as follows:-</p> <p> </p> <p>“ <em>(1) An Amnesty is declared in respect of any Ugandan who has at any time since the 26<sup>th</sup> January, 1986, engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda by</em></p> <ol><li><em>Actual participation in Combat.</em></li> <li><em>Collaborating with the perpetrators of the War or armed rebellion.</em></li> <li><em>Committing any other crime in furtherance of the War or armed rebellion.</em></li> </ol><p> </p> <p><em>2 (2) A person referred to in 2(1) above shall not be prosecuted or subjected to any form of punishment for the participation in the War or rebellion for any crimes committed in the cause of the war or armed rebellion.</em></p> <p><em>Section 3 of the Amnesty Act, governs the grant of amnesty</em>. <em>It states as follows:-</em></p> <p> </p> <p><em>3 (1) A reporter shall be taken to be granted amnesty declared under Section 2 of the reporter:-</em></p> <p> </p> <ol><li><em>reports to the nearest army or police unit, a chief, a member of the executive committee of a local government, a Magistrate or religious leader within the locality.</em></li> <li><em>Renounces and abandons involvement in the war or armed rebellion,</em></li> <li><em>Surrenders at any such place or to any such authority or person any weapons in his or her possession; and</em></li> <li><em>Is issued within a certificate of Amnesty as shall be prescribed by the Minister.</em></li> </ol><p> </p> <p><em>3 (2) where a reporter is a person charged with or is under lawful detention a relation to any offence mentioned in Section 2, the report shall be deemed to be granted the amnesty of the reporter:-</em></p> <p> </p> <ol><li><em>declares to a prison officer or to a judge or Magistrate before whom he or she is being tried that he or she removed the activity referred to in Section 2, and</em></li> <li><em>declares his or her intention to apply for the Amnesty under this Act.</em></li> </ol><p> </p> <p><em>3 (3) A reporter to whom Sub-Section (2) applies shall not be released from custody until the Director of Public Prosecution has certified that, he or she satisfied that:-</em></p> <p> </p> <ol><li><em>the person falls within the provisions of Section 2 and</em></li> <li><em>he or she is not charged or detained to be prosecuted for any offence, not falling under S. 2.”</em></li> </ol><p> </p> <p>In my considered view, the plaintiff in this case falls under Section 3(2) of the Amnesty Act, as he had been charged with treason, which no doubt falls within the Provisions of S. 2 of the Amnesty Act. He is also under lawful detention following his trial and subsequent conviction and sentence by a competent Courts of Law.</p> <p> </p> <p>As to whether or not he qualifies for Amnesty depends upon whether the  conditions set in Section 3(2) (a) of the Amnesty Act, have been met.</p> <p> </p> <p>Section 3 (2) (a) provides as under:-</p> <p>a--------------declares to a prison officer or to a Judge or Magistrate <strong>BEFORE WHOM HE OR SHE IS BEING TRIED, </strong>that he or she recovered the activity referred to in Section 2-------“ (emphasis supplied).</p> <p> </p> <p>In my considered view, it must be before or during the trial of the suspect when he/she can declare to the prison officer or to the trial court for his renunciation of rebellion. It cannot in my view, include those who are already convicted by the Court. If this was the intention of Parliament, it should have expressly stated so. It is not in dispute that the plaintiff in this case, was tried, found guilty and convicted by the High Court. This was in 1983. The conviction and sentence was confirmed on appeal by the Supreme Court of Uganda. This is the highest Court of the land. The plaintiff is in my considered view seeking to circumvent, the Court’s decision, through this suit, which would be tantamount to this court, to review the decision of the Supreme Court. I think the only way forward for the plaintiff is to pursue the general pardon as a convict before the President or he awaits for re-sentencing process in line with the <strong>SUSAN KIGULA case</strong>, whereby we could use part of the submission he has raised here in mitigation of his sentence of death.</p> <p> </p> <p>All in all, I find that, the plaintiff as a convict, does not fall within the provisions of the Amnesty Act, and hence he does not benefit therefrom. The first issue is therefore answered in the negative.</p> <p> </p> <p>As to the second issue of whether the acts of the Amnesty Commission violated or infringed on the plaintiff’s rights under articles 20, 21 and 42 of the Constitution,</p> <p>Articles 20 and 21 of the Constitution are found in Chapter four which deals mainly with the protection and promotion of fundamental and other rights and freedom. In the recent case of <strong>THOMAS KWOYELO alias LATONI VS UGANDA, U.C.A. CONSTITUTIONAL PET. NO. 36/2011</strong> the Constitutional Court of Uganda held inter alia , that,</p> <p> </p> <p><strong>“ Some of the freedom under this (Chapter 4) are absolute and others are subject to some limitations and qualifications</strong>.”</p> <p> </p> <p>Their Lordships went to state that:</p> <p>         </p> <p><strong>“ The rights created under articles 20 and 21 are not absolute. They are subject to Limitations and modifications which must be demonstrably justifiable under a free and democratic Society. To justify unequal treatment under the law, there must exist reasonable and objective criteria for such unequal treatment or discrimination. The burden is on the party who is discriminating to explain the reasons for the unequal treatment or dissemination.”</strong></p> <p>In this particular case, the defendant is of a view that, the plaintiff does not qualify because he is already a convict. And following my finding on the first issue, I agree with him. This means that, the plaintiff is justifiably disseminated against by the Amnesty Commission. The end result is that, there is no infringement on the plaintiff’s rights under articles 20, 21 and 42 of the Constitution. The second issue is therefore answered in the negative.</p> <p> </p> <p>I now turn to the third and last issue of whether the Director of Public Prosecution erred in finding that, the plaintiff is not a person envisaged under S. 3 of the Amnesty Act to receive a certificate under the Amnesty Act. Having found as I have on the first issue that as a convict the plaintiff does not qualify for Amnesty, I find that, the Director of Public Prosecution was within his mandate not to grant the certificate of Amnesty to the plaintiff. This issue is also answered in the negative.</p> <p> </p> <p>All in all I find no merit in this Suit and is dismissed for the reasons I have stated herein above. As this is an extraordinary case, seeking the interpretation of a relatively new of legislation and hence of great public interest and importance, I deem this is a proper case where each party will bear its costs.</p> <p> </p> <p>Order accordingly.</p> <p> </p> <p> </p> <p> </p> <p><strong>AKIIKI – KIIZA</strong></p> <p><strong>JUDGE</strong></p> <p><strong>03/03/2012.</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>Order</strong>: The Assistant Registrar International Crimes Division, to Summon the parties and counsel and read this Judgment to them on the 6/03/2012.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>AKIIKI – KIIZA</strong></p> <p><strong>JUDGE</strong></p> <p><strong>03/03/2012</strong></p> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-8098de668987cb3f329270c09fd434ebd461f60df0b52154802f1fb75ff0c6ee"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>REPUBLIC</strong><strong>OF</strong><strong> UGANDA</strong></p> <p> </p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p> </p> <p><strong>HCT-00-CV- CS- 0054 – 2008.</strong></p> <p> </p> <p><strong>AFRICANUS BRIGHTON GABULA…………………………………PLAINTIFF</strong></p> <p> </p> <p><strong>VERSUS</strong></p> <p> </p> <p><strong>ATTORNEY GENERAL……………………………………………..DEFENDANT</strong></p> <p> </p> <p><strong>JUDGMENT</strong></p> <p> </p> <p>This matter was first brought to Court by way of Notice of Motion filed on the 16/11/2007. The Counsel representing both parties appeared before me on the 17/1/2008. The matter was then adjourned to the 3/4/2008 for hearing. Then the matters were put before my brother Hon. Justice Musoke – Kibuka on the 19/05/2010, whereby the Learned Counsel for the Attorney General (Respondent) informed Court that, similar matter had been filed by way of plaint and had been fixed before me. The Learned Judge dismissed the application (168/2007).</p> <p> </p> <p>In the meantime the plaintiff had also filed this Suit HCCS 54/2008 on the same subject matter, on the 19/3/2008 between the same parties. This case came before me on the 18/4/2008  when I was still in the Civil Division whereby both Counsel applied to file written submissions, as the Court papers filed by both sides, were exclusively based on legal matters, regarding the interpretation of the Amnesty Act and the Constitution of Uganda.</p> <p> </p> <p>Each side was given 14 days to file its respective submissions and replies if any. Thereafter the judgment would be on notice. The file was returned to the Civil Registry for the Counsel to comply with the order to file written submissions. In the meantime, I was transferred from the Civil Division to the then War Crimes Division, now the International Crimes Division, as its head. Thereafter it appears my cases were re-allocated to Hon. Justice Musoke – Kibuka, who was by then in the Civil Division.</p> <p> </p> <p>I have received the file today (the 01/03/2012) from Hon. Justice Musoke - Kibuka for the purpose of writing the judgment. It is regrettable that, the Civil Registry could not forward the file to me soon after the filing of the written submission by the parties Counsel, which, according to the official stamp on them, was done in May 2008. I hope this sort of laxity on the part of the Registries will not  happen again, so as to avoid unwanted delays on the dispensation of justice.</p> <p> </p> <p>As to the merits, the plaintiff brought this action against the Attorney General of Uganda under the provisions of Article 50(1) of the Constitution of the Republic of Uganda for enforcement of his fundamental rights and freedom, for declaration under O. 9. r. 2 of Civil Procedure Rules and for general and exemplary damages for infringement of his fundamental rights and freedom.</p> <p> </p> <p>The facts as can be gathered from the pleadings which are constituting the cause of action are briefly as follows.</p> <p> </p> <p>The plaintiff was arrested on the 24<sup>th</sup> day of August 1988 and charged with the offence of treason. He was tried, convicted and sentenced to death in 1993 by the High Court. The Supreme Court confirmed the conviction and sentence in May 1995.</p> <p> </p> <p>Subsequently on 21/1/2000 the Amnesty Act, Cap 294, was enacted declaring Amnesty in respect of any Ugandan who had at any time since 26/1/1986, engaged in or remains engaging in War or armed rebellion against the government of Republic of Uganda.</p> <p>On 24/2/2000, the plaintiff applied for Amnesty (about 8 years after conviction) and the Amnesty Commission did not issue him with a certificate of amnesty because the plaintiff was a convict and the commission stated that it needed consultation on the interpretation of the Amnesty Act. The plaintiff wrote to the then Deputy Chief Justice, for a legal opinion on the matter. The Learned Deputy Chief Justice, advised to file the matter in Court. The Principal Judge, on the other hand, advised to re-apply to the government. Thereafter, the plaintiff made another application for Amnesty and he has never received any reply to that application. That the Amnesty Commission advised that a person charged with treason is entitled to Amnesty. That subsequently the plaintiff’s  Lawyers petitioned the Director of Public Prosecution to certify that, he was under S. 2 and 3 of the Amnesty Act, entitled to amnesty. The Director of Public Prosecution however, declined to issue the Certificate as plaintiff was a convict. This resulted in filing this Suit.</p> <p> </p> <p>The agreed issues by both parties are as follows.</p> <p> </p> <ol><li>Whether the Amnesty Act, Cap 294, covers persons convicted of treason.</li> </ol><p> </p> <ol><li>Whether the acts of the Amnesty Commission violated or engaged the plaintiff’s rights under Article 20, 21 and 42 of the Constitution.</li> </ol><p> </p> <ol><li>Whether the Director of Public Prosecution erred in finding that the plaintiff is not a person envisaged by Section 3 (of the Amnesty Act) as a person entitled to certification under the Amnesty Act Cap 294 for release.</li> </ol><p> </p> <p>Both Learned Counsel submitted at length on each issue.</p> <p> </p> <p>I will also consider the raised issues in the same order.</p> <p>i) Whether the Amnesty Act Cap 294, covers persons convicted of treason.</p> <p> </p> <p>Amnesty is defined by Section 1 (a) of the Act as:-</p> <p> </p> <p><strong>“ a pardon, forgiveness exemption or discharge from criminal prosecution or any other form of punishment by the State</strong>.”</p> <p> </p> <p>The Learned Counsel for the plaintiff submitted, as I understood them, that, their client falls under “ any other form of punishment by the State”   as he is serving a sentence or waiting to be re-sentenced following <strong>SUSAN KIGULA &amp; OTHERS VS. ATTORNEY GENERAL S.C.U. Constitution Appeal No. 6/2003 </strong>ruling, as the case might be. On the other hand, the Learned Attorney General submitted to the effect that, as the plaintiff had been tried, found guilty and convicted by competent courts, then, he falls outside the scope of the Amnesty Act. That the Act, applies only to those who are not yet prosecuted or are undergoing prosecution.</p> <p> </p> <p>Section 2 of the Amnesty Act, Cap 294 provides as follows:-</p> <p> </p> <p>“ <em>(1) An Amnesty is declared in respect of any Ugandan who has at any time since the 26<sup>th</sup> January, 1986, engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda by</em></p> <ol><li><em>Actual participation in Combat.</em></li> <li><em>Collaborating with the perpetrators of the War or armed rebellion.</em></li> <li><em>Committing any other crime in furtherance of the War or armed rebellion.</em></li> </ol><p> </p> <p><em>2 (2) A person referred to in 2(1) above shall not be prosecuted or subjected to any form of punishment for the participation in the War or rebellion for any crimes committed in the cause of the war or armed rebellion.</em></p> <p><em>Section 3 of the Amnesty Act, governs the grant of amnesty</em>. <em>It states as follows:-</em></p> <p> </p> <p><em>3 (1) A reporter shall be taken to be granted amnesty declared under Section 2 of the reporter:-</em></p> <p> </p> <ol><li><em>reports to the nearest army or police unit, a chief, a member of the executive committee of a local government, a Magistrate or religious leader within the locality.</em></li> <li><em>Renounces and abandons involvement in the war or armed rebellion,</em></li> <li><em>Surrenders at any such place or to any such authority or person any weapons in his or her possession; and</em></li> <li><em>Is issued within a certificate of Amnesty as shall be prescribed by the Minister.</em></li> </ol><p> </p> <p><em>3 (2) where a reporter is a person charged with or is under lawful detention a relation to any offence mentioned in Section 2, the report shall be deemed to be granted the amnesty of the reporter:-</em></p> <p> </p> <ol><li><em>declares to a prison officer or to a judge or Magistrate before whom he or she is being tried that he or she removed the activity referred to in Section 2, and</em></li> <li><em>declares his or her intention to apply for the Amnesty under this Act.</em></li> </ol><p> </p> <p><em>3 (3) A reporter to whom Sub-Section (2) applies shall not be released from custody until the Director of Public Prosecution has certified that, he or she satisfied that:-</em></p> <p> </p> <ol><li><em>the person falls within the provisions of Section 2 and</em></li> <li><em>he or she is not charged or detained to be prosecuted for any offence, not falling under S. 2.”</em></li> </ol><p> </p> <p>In my considered view, the plaintiff in this case falls under Section 3(2) of the Amnesty Act, as he had been charged with treason, which no doubt falls within the Provisions of S. 2 of the Amnesty Act. He is also under lawful detention following his trial and subsequent conviction and sentence by a competent Courts of Law.</p> <p> </p> <p>As to whether or not he qualifies for Amnesty depends upon whether the  conditions set in Section 3(2) (a) of the Amnesty Act, have been met.</p> <p> </p> <p>Section 3 (2) (a) provides as under:-</p> <p>a--------------declares to a prison officer or to a Judge or Magistrate <strong>BEFORE WHOM HE OR SHE IS BEING TRIED, </strong>that he or she recovered the activity referred to in Section 2-------“ (emphasis supplied).</p> <p> </p> <p>In my considered view, it must be before or during the trial of the suspect when he/she can declare to the prison officer or to the trial court for his renunciation of rebellion. It cannot in my view, include those who are already convicted by the Court. If this was the intention of Parliament, it should have expressly stated so. It is not in dispute that the plaintiff in this case, was tried, found guilty and convicted by the High Court. This was in 1983. The conviction and sentence was confirmed on appeal by the Supreme Court of Uganda. This is the highest Court of the land. The plaintiff is in my considered view seeking to circumvent, the Court’s decision, through this suit, which would be tantamount to this court, to review the decision of the Supreme Court. I think the only way forward for the plaintiff is to pursue the general pardon as a convict before the President or he awaits for re-sentencing process in line with the <strong>SUSAN KIGULA case</strong>, whereby we could use part of the submission he has raised here in mitigation of his sentence of death.</p> <p> </p> <p>All in all, I find that, the plaintiff as a convict, does not fall within the provisions of the Amnesty Act, and hence he does not benefit therefrom. The first issue is therefore answered in the negative.</p> <p> </p> <p>As to the second issue of whether the acts of the Amnesty Commission violated or infringed on the plaintiff’s rights under articles 20, 21 and 42 of the Constitution,</p> <p>Articles 20 and 21 of the Constitution are found in Chapter four which deals mainly with the protection and promotion of fundamental and other rights and freedom. In the recent case of <strong>THOMAS KWOYELO alias LATONI VS UGANDA, U.C.A. CONSTITUTIONAL PET. NO. 36/2011</strong> the Constitutional Court of Uganda held inter alia , that,</p> <p> </p> <p><strong>“ Some of the freedom under this (Chapter 4) are absolute and others are subject to some limitations and qualifications</strong>.”</p> <p> </p> <p>Their Lordships went to state that:</p> <p>         </p> <p><strong>“ The rights created under articles 20 and 21 are not absolute. They are subject to Limitations and modifications which must be demonstrably justifiable under a free and democratic Society. To justify unequal treatment under the law, there must exist reasonable and objective criteria for such unequal treatment or discrimination. The burden is on the party who is discriminating to explain the reasons for the unequal treatment or dissemination.”</strong></p> <p>In this particular case, the defendant is of a view that, the plaintiff does not qualify because he is already a convict. And following my finding on the first issue, I agree with him. This means that, the plaintiff is justifiably disseminated against by the Amnesty Commission. The end result is that, there is no infringement on the plaintiff’s rights under articles 20, 21 and 42 of the Constitution. The second issue is therefore answered in the negative.</p> <p> </p> <p>I now turn to the third and last issue of whether the Director of Public Prosecution erred in finding that, the plaintiff is not a person envisaged under S. 3 of the Amnesty Act to receive a certificate under the Amnesty Act. Having found as I have on the first issue that as a convict the plaintiff does not qualify for Amnesty, I find that, the Director of Public Prosecution was within his mandate not to grant the certificate of Amnesty to the plaintiff. This issue is also answered in the negative.</p> <p> </p> <p>All in all I find no merit in this Suit and is dismissed for the reasons I have stated herein above. As this is an extraordinary case, seeking the interpretation of a relatively new of legislation and hence of great public interest and importance, I deem this is a proper case where each party will bear its costs.</p> <p> </p> <p>Order accordingly.</p> <p> </p> <p> </p> <p> </p> <p><strong>AKIIKI – KIIZA</strong></p> <p><strong>JUDGE</strong></p> <p><strong>03/03/2012.</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>Order</strong>: The Assistant Registrar International Crimes Division, to Summon the parties and counsel and read this Judgment to them on the 6/03/2012.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>AKIIKI – KIIZA</strong></p> <p><strong>JUDGE</strong></p> <p><strong>03/03/2012</strong></p></span></div></div> </div> </div> Wed, 13 Jan 2021 17:07:05 +0000 Anonymous 9070 at http://ulii.org Uganda v Hussein Hassan Agade & 12 Ors (Criminal Session Case-2010/1) [2016] UGHICD 4 (26 May 2016); http://ulii.org/ug/judgment/hc-international-crimes-division-uganda/2016/4 <span class="field field--name-title field--type-string field--label-hidden">Uganda v Hussein Hassan Agade &amp; 12 Ors (Criminal Session Case-2010/1) [2016] UGHICD 4 (26 May 2016);</span> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 01/13/2021 - 08:44</span> <div class="clearfix text-formatted field field--name-field-search-summary field--type-text-with-summary field--label-above"> <div class="field__label">Search summary</div> <div class="field__item"><p>Criminal law, Evidence Law, Admissibility</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.ulii.org/files/judgments/ughicd/2016/4/2016-ughicd-4.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=232112">2016-ughicd-4.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.ulii.org/files/judgments/ughicd/2016/4/2016-ughicd-4.pdf" type="application/pdf; length=756372">2016-ughicd-4.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA </strong></p> <p><strong>INTERNATIONAL CRIMES DIVISION  </strong></p> <p><strong>CRIMINAL SESSION CASE No. 0001 OF 2010</strong></p> <p><strong>(Arising from Nakawa Chief Magistrate’s Court Crim. Case No. 574 of 2010)</strong></p> <p> </p> <p><strong>UGANDA ............................................................................................ PROSECUTOR</strong></p> <p> </p> <p><strong><em>VERSUS</em></strong></p> <p> </p> <p><strong>1.         HUSSEIN HASSAN AGADE            }{</strong></p> <p><strong>2.         IDRIS MAGONDU                         }{                                                                                  </strong></p> <p><strong>3.         ISSA AHMED LUYIMA                   }{</strong></p> <p><strong>4.         HASSAN HARUNA LUYIMA           }{ </strong></p> <p><strong>5.         ABUBAKARI BATEMETYO             }{</strong></p> <p><strong>6.         YAHYA SULEIMAN MBUTHIA        }{</strong></p> <p><strong>7.         HABIB SULEIMAN NJOROGE           }{ :::::::::::::::::::::::::::::::::::    ACCUSED</strong></p> <p><strong>8.         OMAR AWADH OMAR                   }{</strong></p> <p><strong>9.         MOHAMED HAMID SULEIMAN       }{</strong></p> <p><strong>10.       SELEMANI HIJAR NYAMANDONDO }{</strong></p> <p><strong>11.       MOHAMED ALI MOHAMED            }{</strong></p> <p><strong>12.       DR. ISMAIL KALULE                        }{ </strong></p> <p><strong>13.       MUZAFAR LUYIMA }{</strong></p> <p> </p> <p><strong>BEFORE:- THE HON MR. JUSTICE ALFONSE CHIGAMOY OWINY – DOLLO</strong></p> <p><strong>JUDGMENT</strong></p> <p>The 13 (thirteen persons) named herein above, who are herein after also referred to respectively as <strong>A1 </strong>to <strong>A13 </strong>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<strong>A1</strong>to<strong>A12</strong>of having committed the offence of terrorism c/s 7 (1) &amp; (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.</p> <p>The second charge, in which <strong>A1</strong>to<strong>A12</strong>have jointly been charged in one Count, is the offence ofbelonging to a terrorist organization c/s 11 (1) (a) of theAnti Terrorism Act 2002. The particulars of the chargestate that between the years 2006 and 2010, <strong>A1</strong>to<strong>A12</strong>belonged to Al–Shabaab, which is stated to be an affiliate of Al–Qaeda listed under theAnti Terrorism Act 2002as a terrorist organization. Third, <strong>A1</strong>to<strong>A12</strong>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 <strong>A1</strong>to<strong>A12</strong> 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 <strong>A1</strong>to<strong>A12</strong> are charged, took place.</p> <p>Fourth, <strong>A1 </strong>to <strong>A12 </strong>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, <strong>A13 </strong>has been charged alone, in two counts, with the offence of being an accessory after the fact c/ss 28(1) and (29) ofthe Anti Terrorism Act 2002. The particulars of the charge in the first count is that in the month of July 2010, <strong>A13</strong> received Idris Nsubuga, who to his knowledge had committed an offence of terrorism,and assisted him in order to enable him to escape.</p> <p>The particulars in the second count of the offence is otherwise the same; save that therein the person <strong>A13 </strong>is alleged to have received with the knowledge that he had committed the offence of terrorism, and assisted in order to enableto escape, is named as Hassan Haruna Luyima. Finally, <strong>A12 </strong>has been charged alone, in one Count, with the offence of aiding and abetting terrorism c/s 8 of theAnti Terrorism Act 2002.The particulars of the charge are that in various places in Uganda, <strong>A12</strong> aided and or abetted and rendered support to Al–Shabaabgroup, 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.</p> <p>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 Accusedpersons 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 necessitatedthe conduct of a full–blowntrial; which this Court carried out.</p> <p><strong>BURDEN OF PROOF</strong></p> <p>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 notshift to the Accused person; except where there is a specific statutory provision to the contrary (see <strong><em>Woolmington vs D.P.P. [1935] A.C. 462</em></strong>, and <strong><em>Okethi Okale &amp; Ors. vs Republic [1965] E.A. 555</em></strong>). 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 caseagainst 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.</p> <p>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 <strong><em>Miller vs Minister of Pensions [1947] 2 All E.R. 372</em></strong> at page 373 to page 374, Lord Denning stated quite succinctly that:–</p> <p><em>"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." </em></p> <p>In <strong><em>Andrea Obonyo &amp; Ors. V. R. [1962] E.A. 542</em></strong>, the Court stated at p. 550 as follows:</p> <p><em>"As to the standard of proof required in criminal cases <strong>DENNING, L.J.</strong> (as he then was), had this to say in <strong>Bater v. Bater [1950] 2 All E.R.</strong> 458 at 459:</em></p> <p><em>‘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.’</em></p> <p><em>That passage was approved in <strong>Hornal v. Neuberger Products Ltd. [1956] 3 All E.R. 970, </strong>and in<strong> Henry H. Ilanga v. M. Manyoka [1961] E.A. 705 (C.A.).</strong>In <strong>Hornal v. Neuberger Products Ltd.,HODSON, L.J.</strong>, cited with approval the following passage from <strong>KENNY’S OUTLINES OF CRIMINAL LAW</strong> (16th Edn.), at p. 416: </em></p> <p><em>‘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 <strong>R. v. Stoddart (1909) 2 Cr. App. Rep. 217</strong>at p. 242. </em></p> <p><em>... ... ...</em>[I]<em>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. </em></p> <p>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 reasonabledoubt; hence, the Prosecution would have conclusively discharged the burden that lay on it to prove the guilt of the Accused. In<strong><em>Obar s/o Nyarongo v. Reginam (1955) 22 E.A.C.A. 422</em>, </strong>at p. 424 the Court held that:</p> <p><em>“We think it apt here to cite a passage from the recent Privy Council case of <strong>Chan Kau v. The Queen (1952) W.L.R. 192.</strong>... At p. 194 <strong>Lord Tucker</strong> said this:</em></p> <p><em>‘Since the decision of the House of Lords in <strong>Woolmington v. Director of Public Prosecutions (1935) A.C. 462; </strong>and <strong>Mancini v. Director of Public Prosecutions 28 C.A.R. 65;</strong> 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.’”</em></p> <p>In <strong><em>Okethi Okale v. R. [1965] E.A. 555</em></strong>, the trial judge had misdirectedhimself on the onus of proof; and made remark on the defence evidence, stating that:</p> <p><em>“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’.”</em></p> <p>On appeal, the Court responded at p. 559 as follows:</p> <p><em>“We think with respect that the learned judge’s approach to the onus of proof was clearly wrong, and in <strong>Ndege Maragwa v. Republic (1965) E.A.C.A. Criminal Appeal No. 156 of 1964</strong> (unreported), where the trial judge had used similar expressions this court said:</em></p> <p><em>“… 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. </em></p> <p><em>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.)” (<strong>emphasisadded</strong>).</em></p> <p>In the two combined appeal cases of<strong><em>R. v. Sharmpal Singh s/o Pritam Singh; &amp; Sharmal Singh s/o Pritam Singh v. R. [1962] E.A. 13</em></strong>,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:</p> <p><em>“… 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 <strong>Mancini v. the Director of Public Prosecutions [1942] A.C. 1</strong>, 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.”</em></p> <p>In<strong><em>Abdu Ngobi vs Uganda, S.C.Cr. Appeal No. 10 of 1991</em></strong>, the Supreme Court expressed itself as follows; with regard to treatment of evidence:</p> <p><em>“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.”</em></p> <p>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 <strong><em>Byamungus/o Rusiliba v. Rex (1951) 18 E.A.C.A. 233</em></strong>, the Court considered the defence of alibi put up by the defence, which the trial Court had rejected as untrue, the appellate judgesdid not question it; but, with regard to the burden of proof, they said this, at p. 237:–</p> <p><em>“…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.”</em></p> <p>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. Oncircumstantial evidence, the lawis 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, isonly justifiedwhen 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 negatethe inference of guilt. </p> <p>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 considerationof the entire evidence adduced; and not a selective approach that considers pieces of evidence in isolation from the other pieces of evidencerelevant 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 factextraneous 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 valueat all in the determination of the case against the Accused person.</p> <p>In the <strong><em>Okethi Okale v. R.</em></strong> 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. 557to have stated thus: –</p> <p><em>“This is a case in which reasoning has to play a greater part than actual evidence.”</em></p> <p>On appeal, the Court responded tersely as follows: –</p> <p><em>“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 <strong>R. vs Isaac [1965] Crim. L.R. 174</strong>).”</em></p> <p>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 gruesomemurder 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 theCourt 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 wereto emerge that investigations had established that anyone, or all, of the Accused persons herein was, or were, behind that most horrendous act.</p> <p>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 convictionresults there from, it is self–evident that there wouldbe amost 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 repugnantdeed might have had on them; and instead rely strictly on the evidence adduced before this Court during the trial.</p> <p><strong>OFFENCE OFBELONGING TO A TERRORIST ORGANISATION</strong></p> <p>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 <em>'terrorist organization'</em> 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.</p> <p>Similarly, section 11 of the Anti Terrorism Act prescribes that a personwho 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:– </p> <p><em>"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"</em>.</p> <p>Section 10 (6) of the Act provides that in the section,<em>“organisation” includes any association or combination of persons."</em></p> <p>The key words in section 11 of the Act are:<em>'belonging'</em> or <em>'professing to belong'</em> to a listed terrorist organization. Therefore, tomerely <em>'profess to belong'</em> to a listed terrorist organizationwouldsuffice to have such a person charged with commission of the offence of belonging to a terrorist organization. The ingredients of the offence are:–</p> <ol><li>Existence of a terrorist organization.</li> <li>The terrorist organization must be listed in the Act.</li> <li>The Accused person must belong, or profess to belong, to a terror organizationlisted in the 2nd Schedule to the Act.</li> </ol><p> </p> <p><strong>Ingredient (i)</strong></p> <p><strong><em>(Existence of a terrorist organisation)</em></strong></p> <p>I find it preferable not to refer to the evidence of PW1, <strong>A3</strong>, and <strong>A4</strong>, on the matter; andwill accordingly restrict myself to the evidence of PW78 that Al–Shabaabhad threatened to attack Uganda; and that it claimed responsibility for the Kampala bombings. In addition tothe link between Al–Shabaaband 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 meansto achieve its cause. This isevident 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 ofterrorist organization;as is spelt out in the Anti Terrorism Act.</p> <p><strong>Ingredient (ii)</strong></p> <p><strong><em>(Organisation to be listed in the 2nd Schedule to the Act)</em></strong></p> <p>In 2010 when the Kampala bombings took place, Al–Shabaab was not among the organizations listed in the 2ndSchedule 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 Prosecutionreferred me tosome 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'<strong><em>World Terrorism: An Encyclopaedia of Political Violence from Ancient Times to Post 9/11 Era' (2nd Edn., Vol. 1– 3; Routledge, at p.444)</em></strong>, where James Cimens states that:–</p> <p><em>"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."</em></p> <p>Second, <strong><em>'Al–Shabaab in Somalia: The History and Ideology of a Militant Islamist Group; 2005 – 2012; Oxford University Press, p.45</em>'</strong>, where Stig Jarle Hansen, after an extensive and well considered analysis of the Al–Shabaabas an organization, concludes thatAl–Shabaab is an ally of Al–Qaeda. He states therein that:–</p> <p><em>"Al Shabaab is more than a product of insecurity. It is the export of Al Qaeda's ideology of Global Jihad in Somalia."</em></p> <p>Third, is the document intituled <strong><em>'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).</em></strong></p> <p>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 <em>'Al–Shabaab is an export of the Al–Qaeda ideology of Global Jihad in Somalia'</em>;<em>'Al–Shabaab has been an affiliate of Al–Qaeda since 2005'</em>;<em>'Al–Shabaab swore allegiance to Al–Qaeda's Osama bin Laden in September 2009'</em>;<em>'Al–Shabaab leadership made a formal alliance with Al–Qaeda in February 2010'</em>;<em>'Al–Shabaab is a self–declared ally of Al–Qaeda'</em>, 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.</p> <p>I must confess, I neverhad the time to read the works by these learned authors; so,I did not directly benefit fromthem. I had to rely on the quotations and submissions made by learned State Counsels. Fortunately, in their submissions on theseworks, State Counselssuccinctly 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: <em>"Al–Shabaab being an affiliate of Al–Qaeda"</em>,<em>"Al–Shabaab having sworn allegiance to Al–Qaeda"</em>, <em>"Al–Shabaab leadership having made a formal alliance with Al–Qaeda"</em> and <em>"Al–Shabaab being a self declared ally of Al–Qaeda"</em>. Thus, the key and determinant words from these phrases are <em>'affiliate'</em>, <em>'allegiance'</em>, <em>'alliance'</em> and <em>'ally'</em>.</p> <p>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:–  </p> <p><em>"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"</em>.</p> <p>It therefore follows thatfor 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 2ndSchedule to the Act, and did not pass under a name of any of the organizations listed in the said Schedule.</p> <p>The <strong><em>Oxford Dictionary of English</em></strong> (2nd Edn., O.U.P.) defines the noun <em>'affiliate'</em>, to mean: <em>'a person or organization officially attached to a larger body'</em>. It defines the noun <em>'allegiance'</em>, to mean: <em>'loyalty or commitment to a superior or to a group or cause'</em>. It defines the word <em>'alliance'</em> to mean: 'a union or association formed for mutual benefit, especially between countries or organizations'. It defines the noun <em>'ally'</em>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–Shabaabbeing<em>"an affiliate of Al Qaeda"</em>, <em>"having sworn allegiance to Al–Qaeda"</em>, <em>"made a formal alliance with Al–Qaeda"</em> and <em>"a self–declared ally of Al–Qaeda"</em>, with which the treatises cited have classifiedthe relationship between the two organizations, could be construed to mean Al–Shabaab was<em>'passing under the name'</em> of Al–Qaeda.</p> <p>In thecase of <strong><em>Noor Mohamed Jiwa v. Rex (1951)18 E.A.C.A. 155</em></strong>, Court was confronted with the task of construingwhether the word <em>‘and’</em>was the same as <em>‘or’</em> inthe enactment. The Court referred to <strong><em>Maxwell on Interpretation of Statutes 9th (1946) Edition</em></strong>, 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:–</p> <p><em>“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. </em></p> <p><em>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. </em></p> <p><em>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.”</em></p> <p>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 <em>'terrorist organization'</em> within the meaning assigned to that term by the Act.I therefore fail to see how the learned treatisescited above could qualify the Al–Shabaab as a terrorist organization within themeaning attached to the term<em>'terrorist organization'</em>by section 10 of the Act.</p> <p>I believe it is organizations such as the Al–Qaeda in Yemen, Al Qaeda in the Islamic Maghreb, or any other organizationpassing 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 realizationthat 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.</p> <p>It followsfrom the above, that the prosecution has failed to prove the charge against any of the accused, from <strong>A1</strong> to <strong>A12</strong>, 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 <em>'belongingto a terrorist organization'</em> 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.</p> <p>Theoffence of committingaterrorist act, and that of belonging to a terrorist organization,are distinct and separate from,and as well independentof, each other; and neither of them is contingent on the other.In the event, Istrike out the charge of belonging to a terrorist organization with which <strong>A1</strong> to <strong>A12</strong> have been jointly indicted.</p> <p><strong>THE OFFENCE OF TERRORISM</strong></p> <p>The ingredients,or what constitutesthe 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:–</p> <p><em>“for purposes of influencing the Government or intimidating the public or a section of the public and for a political, religious, social or economic aim, indiscriminately without due regard to the safety of others or property, carries out all or any of the following acts”</em>(<strong>emphasis added</strong>).</p> <p>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:–</p> <p>(a)        The purpose or purposes for carrying out the act or acts;</p> <p>(b)        The manner the act is, or acts are, carried out;</p> <p>(c)        The nature of the actthat is, or acts that are, carried out.</p> <p>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:–</p> <p><em>"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".</em></p> <p>This is because section 7(2) of the Act provides expressly that the offence of terrorism is committed when a person carries out<em>“all or any”</em>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:– </p> <ol><li>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;</li> <li>the intentional and unlawful attempted or actualperpetration of theact should be for the purpose of causing death, or serious bodily injury, or extensive destruction likely to or actually resulting in major economic loss;  </li> <li>the intentional and unlawful attempted or actual act is done for political, religious, social or economic aim; </li> <li>intentional and unlawful attempted or actualperpetration of theact is indiscriminate, and done without due regard to safety of others or property;</li> <li>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;  </li> </ol><p>     (vi)   the participation of the Accused persons in the attempted or                       actual perpetration of the actabove.</p> <p>Section 2 of the Antiterrorism Act, defines <em>'explosive or other lethal device' </em>to mean: –</p> <p><em>"(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</em></p> <p><em>(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."</em></p> <p>On the other hand, section 1 of the Explosives Act (Cap. 298 Laws of Uganda – Revised Edn. 2000) defines <em>'explosives'</em> 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.</p> <p><strong>THE EVIDENCE ADDUCED FOR THE OFFENCE OF TERRORISM</strong><strong>.</strong></p> <p><strong>Ingredient (i)</strong>:–</p> <p>                                    <em>'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'</em>.</p> <p>The prosecution adduced evidence that the twin explosions in Kampala and the placement of the unexploded bomb devicesin 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 ofPW1that 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 <strong>A3</strong>'sconfession, 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;wherethe explosives used in the Kampala attacksoriginated from,and were ferried through Kenya.</p> <p>PW2'stestimony was that he took custody of the explosive devices at his Najjanakumbi rented residence, deliveredsome of the devices to the Kyadondo Rugby Club grounds, and from there detonated the devices by use of a phone call. <strong>A3</strong> in his extra–judicial statement to PW3 revealed that one Hanifa did the final wiring, and connection, of the explosive devices from his (<strong>A3</strong>'s) Namasuba rented residence. PW2, in histestimony, and<strong>A3</strong>, as well as<strong>A4</strong>, revealed in their extra–judicialstatements, that they engaged in the identification of public places in Kampala best suited for the placement and detonation of the explosives devices. They identifiedthe Kyadondo Rugby Club, Ethiopian Village Restaurant, and Makindye House, as the public places that were suitable for the purpose of the Uganda mission.</p> <p>It is certainly evident that PW1 and PW2 were accomplices in the commission of the offence of terrorism; while <strong>A3</strong>and <strong>A4</strong>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 <strong>A3</strong> and <strong>A4</strong>.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 thatsuch evidence is in fact credible.</p> <p>Thevarious witnesses, who were either at Kyadondo Rugby Club or at Ethiopian Village Restaurant when the explosives went off, allattestto the fact that the explosives were placed in the midst of people who hadgathered 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–judicialstatements of <strong>A3</strong> and <strong>A4</strong>, that the explosive devices were deliberately placed in places of public use to ensure maximum impact.</p> <p><strong>Ingredient (ii)</strong>:–</p> <p><em>'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'.</em></p> <p>PW2 testified that he and<strong>A3</strong> surveyed various places in Kampala for the intended attack (e.g. Bohemia Pub Munyonyo, which however<strong>A3</strong> 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 checkbefore entry. He was not able to shift it to the place he had intended to take it; so he left the bombat the entrance, from where he detonated it by making a call from a distance as he had been instructed to do.</p> <p>Various prosecutionwitnesses such asKigundu 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 explosionsat 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.</p> <p>The Mulago Hospital pathologist (PW32), testified to having received bodies, including the head of a male person (<em>exhibit PE104</em>), and amputated limbs; andfrom 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 (<em>exhibit PE105</em>) 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 beendevastating blast injuries.D/AIP Aluma Charles (PW33) who was the mortuary attendant at Mulago Hospitalalso 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.</p> <p>The FBI Special Agent (PW35) who examined various items (<em>exhibits PE185 to PE277</em>) recovered from the Kyadondo Rugby Club, Ethiopian Village Restaurant, and Makindye House, revealed in his report (<em>exhibit PE109</em>) 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.</p> <p>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), andD/Sgt. Isaac Namwanza (PW18), who saw the explosive devicesdiscovered at the Makindye House, attested to their lethal nature.</p> <p>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 attestto 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 unexplodeddevice 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).</p> <p><strong>Ingredient (iii)</strong>:–</p> <p><em>'The intentional and unlawful attempted or actual act is done for political, religious, social or economic aim'.</em></p> <p>PW1 testified thatAl–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. <strong>A3</strong> 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 <strong>A3</strong>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.</p> <p><strong>Ingredient (iv)</strong><strong>:–</strong></p> <p><em>'Intentional and unlawful attempted or actual perpetration of the act is indiscriminate; and done without due regard to safety of others or property'.</em></p> <p>PW2 testified that <strong>A3</strong> 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 <strong>A4</strong> 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, satin 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.</p> <p>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 explosivesat 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.</p> <p><strong>Ingredient (v)</strong><strong> :–</strong></p> <p><em>'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'.   </em></p> <p>PW1'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 <strong>A3</strong> who recruited him into the mission had told him that the reason for the intended attack on Uganda was because ofthe deployment of Ugandan troops in Somalia, where they have fought against the Al–Shabaab. <strong>A3</strong> himself disclosed, in hisextra–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.</p> <p><strong>Ingredient (vi)</strong>: –</p> <p><strong><em>'Participation of each of the Accused persons'</em></strong></p> <p> </p> <p>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 providesas follows: –</p> <p><em>"(1)      When an offence is committed, each of the following persons is         deemed to have taken part in committing the offence and to be   guilty of the offence and may be charged with actually           committing it-</em></p> <p><em>            (a)        every person who actually does the act or makes the                                      omission which constitutes the offence;</em></p> <p><em>            (b)        every person who does or omits to do any act for the                                                 purpose of enabling or aiding another person to commit the                               offence;</em></p> <p><em>            (c)        every person who aids or abets another person in                                          committing the offence.</em></p> <p><em>(2)        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."</em></p> <p><strong>DOCTRINE OF COMMON INTENTION</strong></p> <p><strong><em>(Joint offenders in prosecution of common purpose)</em></strong></p> <p>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: –</p> <p><em>“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.”</em></p> <p>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.</p> <p>In the case of <strong><em>Ismael Kisegerwa &amp; Anor. vs Uganda; C.A. Crim. Appeal No. 6 of 1978</em></strong>, the Court gave an authoritative explanation on the doctrine of common intention as follows: –</p> <p><em>"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.</em></p> <p><em>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."</em></p> <p>In <strong><em>Abdi Alli v. R (1956) 23 E.A.C.A. 573</em></strong>, the Court of Appeal held at p. 575 that:</p> <p><em>"... 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."</em></p> <p><em>... ... ...</em></p> <p><em>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 </em>[of the Penal Code]<em> can be applied.”</em> </p> <p><strong>(i) Participation of Issa Ahmed Luyima (A3)</strong></p> <p>                                                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. RegardingIssa Ahmed Luyima (<strong>A3</strong>), Mamoud Mugisha (PW1) testified that he and others werein Somaliain Al–Shabaab camps with <strong>A3</strong>whom he knew thenby the nameBaseyevu. They received military training together from there; and fought battles together in Somalia. He and<strong>A3</strong>were identified by the Al–Shabaab leadership andsent together on a mission to plan attacks on Kampala, after they had been given special training for that purpose. He identified andrented a house at Nakulabye for the purpose; but <strong>A3</strong>rejected it, fearingthe security personnel guarding a government Minister who was resident nearby. Instead,<strong> A3</strong> rented another house at Para Zone Namasuba.</p> <p>                                                Idris Nsubuga (PW2), for his part, testified that<strong>A3</strong> recruited him in the schemeto carry out attacks in Kampala; and that he and <strong>A3</strong> surveyedvariouslocations in Kampala for the intended attacks. Out of these, <strong>A3 </strong>approved of Kyadondo Rugby Club. He also testified that<strong>A3</strong>phoned him to wait for, and receive, items which had been brought into Uganda from Nairobi; and later, <strong>A3</strong>and<strong>A10</strong> delivered a sealed green bag at his (PW2’s) home in Najjanankumbi. After this, <strong>A3</strong> booked a room for <strong>A10</strong>in Naigara Hotel, using the fictitious name of Moses. <strong>A3</strong>later showed him the items in the bag that he (<strong>A3</strong>) and <strong>A10</strong> had delivered to his (PW2's) Najjanakumbi house, and identified them as explosives; and then he <strong>A3</strong>took them awayto hishouseat Para Zone Namasuba. </p> <p>                                                He further testified that in the Namasuba house, <strong>A3</strong> kept the two personswho 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 <strong>A3</strong>'s Namasuba house; and that<strong>A3</strong> explained to him his role in the detonation of the explosives.<strong>A3</strong> 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, <strong>A3 </strong>sent money to him (PW2) from Mombasa through Biashara Forex Bureau, with instructions to him (PW2) to remove <strong>A3</strong>’s properties from, and vacate, the Namasuba house.<strong>A3</strong>also sent him money from Mombasa for bailing out PW1.</p> <p>                                                However,<strong> A3</strong>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 haswrongly painted him as the architect of the Kampala attacks; and he labeledPW1 as a self–confessed liar. He pointed out that there was no evidence in corroboration of PW1's evidence regarding his <strong>A3</strong>'s and PW1'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 possiblyexplain the FBI's finding of the presence of his DNA on the mattress cover recovered from PW2' home. He denied that he ever bookedfor accommodationatNaigara Hotel.</p> <p>                                                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, whileusing 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 <strong>A1 </strong>to <strong>A12 </strong>herein have been indicted.Section 132 of the Evidence Act (Cap. 6 Laws of Uganda, 2000 Edn.) provides as follows:–</p> <p><em>"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."</em></p> <p>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 corroboratingthat of theaccomplice, 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 <strong><em>Rasikial Jamnadas Davda vs Republic [1965] E.A. 201</em></strong>, at p. 2017, the Court laid down the rule as to who an accomplice is, as follows: –</p> <p><em>"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 <strong>Davies vs Director of Public Prosecutions [1954] 2 W.L.R. 343</strong>; <strong>[1954] 1 All E.R. 507</strong>; 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:</em></p> <p><em>'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)'. </em></p> <p><em>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 (<strong>[1954] 2 W.L.R. at p. 353</strong>):</em></p> <p><em>'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 </em>[the jury]<em> 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.'"</em></p> <p>In <strong><em>The King vs Baskerville [1916]2 K.B. 658</em></strong>, the Court held that there is no doubt the uncorroborated evidence of an accomplice is admissible in law. In <strong><em>Nassolo vs Uganda [2003] 1 E.A. 177</em></strong>, the Court restated the position that a judge must warnhimself 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 PW2on his own plea of guiltywhen he confessed to having played a central role in perpetrating the crime. He testified at the trial while serving a twenty–fiveyear sentence I had earlierimposed on him.</p> <p>He did notseek 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.</p> <p>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 witnessat the trial. He firmly expressedhis wishto 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 <strong>A1</strong> to <strong>A12 </strong>have been indicted; and so, I am boundto treat their evidence with the greatest caution, as is required of me.</p> <p>Ifind useful guidance for this, in the case of <strong><em>Uganda vs Khimchand Kalidas Shah &amp; 2 Ors [1966] E.A. 30</em></strong>, 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 <em>'put the cart before the horse'</em> 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:–</p> <p><em>"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 </em>[Court]<em> 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."</em></p> <p>At p. 34, the Court of Appeal added as follows:–</p> <p><em>"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."</em></p> <p>In the case of <strong><em>Kibale Ishma vs Uganda, Cr. A. No. 21 of 1998</em></strong>, the Supreme Court of Uganda followed the principles enunciated above, anddefined 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.  </p> <p>In the Indian case of <strong><em>Ramashaw vs The State of Rajasthan, AIR [1959] SC 54</em></strong>, which the prosecution cited to me, the Court clarified on corroboration; and paraphrased, it states as follows:–</p> <p>(i)         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.</p> <p>(ii)        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.</p> <p>(iii)       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.</p> <p>In the case of <strong><em>Susan Kigula &amp; Anor vs Uganda, S.C.Cr.A. No. 1 of 2004</em></strong>, the Court held that:–</p> <p><em>"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."</em></p> <p>In the instant case before me, regarding the participation of <strong>A3</strong>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 <strong>A3</strong> in the commission of the offence of terrorismfor which he has been indicted; despite <strong>A3</strong>'s vehement denial of any participation. However, there is a huge corpus of overwhelming evidenceadduced at the trial, as is shown below, corroborating the evidence adduced by PW1 and PW2, of <strong>A3</strong>'s guilt.</p> <p><strong>Corroboration of evidence adduced by PW1 and PW2 against A3</strong></p> <p>Police Officers Sgt. Christopher Oguso (PW59) and AIGP John Ndungutse Ngaruye (PW78) both testified thatupon the arrest of <strong>A1</strong>,they found him with a phone in whose phone book was saved telephoneNo.254732812681as the contact for'Basa'; whom <strong>A1 </strong>identified to the Police Officers as <strong>A3</strong>. He (<strong>A1</strong>) informed the Police Officers that <strong>A3 </strong>also had another telephone whose No. was 254719706497. It is the law that whereinformation 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 asfollows: –</p> <p><em>"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." </em></p> <p>An examination of the Call Data Record (CDR) for telephone No.254732812681, which <strong>A1</strong> informed the police as belonging to <strong>A3</strong>, 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 and25250460706, from the Namasuba geo–location.The CDR fortelephone No.254732812681also showed that it called<strong>A11</strong>, 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 <strong>A3 </strong>from Mombasa by Police Officer Superintendent of Police (S.P.) Zackaria Kiplagat Bitok (PW51). This arrest is confirmed by <strong>A3</strong> himself.</p> <p>PW31 also established that the two Kenyan tel.Nos. 254732812681 and 2547199706497, which Aidah Nabwami had disclosed as belonging to <strong>A3</strong>had, while roaming in Uganda,shared a phone handset (<em>exhibit PE299</em>) having IMEI (Serial No.) 35832403756470, with the Ugandan tel. No. 256772528289 which belonged to Aidah Nabwami. This handset (<em>exhibit PE299</em>) was recovered from Aidah Nabwami.Since the CDRs for the tel. Nos. 254732812681 (<em>exhibit PE145</em>) and 2547199706497(<em>exhibit PE137</em>) show thattheymade calls from the geo–location of Namasuba, they bolster the evidence of Juliet Kato (PW12) who was<strong>A3</strong>'s landlady for the Namasuba rented house,and that of Christine Ahumuza (PW15) who was <strong>A3</strong>'s neighbour at the Namasuba rented house, ascorroborativeof the evidence adduced by PW1 and PW2,that indeed <strong>A3</strong>had rented a house in Namasuba.</p> <p>The disclosure by the CDR of tel. No.254732812681 that it called tel. No. 252615624981 of Somalia corroborates PW1's testimony that <strong>A3</strong>had dealings with that country. Furthermore, the revelation by the CDR that the call to Somaliawas 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 <strong>A3</strong> and PW1 had been assigned from Somaliato carry out in Uganda. This is strong circumstantial evidence, which is corroborativeof the evidence by PW1 and PW2 that <strong>A3 </strong>had a central and lead role in the perpetration of the terrorist acts that were visited on Kampala on the11th July 2010; and for which <strong>A3 </strong>and others are now standing trial in this Court.</p> <p>The evidence that <strong>A3 </strong>was arrested from Mombasa, which <strong>A3 </strong>conceded to, afforded corroboration of the information obtained from Aidah Nabwami by the Police that <strong>A3 </strong>(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, <strong>A3 </strong>left for Nairobi; and thereafter sent him money using Biashara Forex Bureau co carry out certain specific instructions. The evidence that <strong>A1 </strong>had saved telephone No.254732812681 in his phone book as the contact for Basa, whom he identified to the Police Officers as <strong>A3</strong>, corroborated the evidence by PW1 that while in Somalia he knew <strong>A3</strong>as Basayevu. For sure, 'Basa' was a short form for Basayevu.</p> <p>Juliet Kato (PW12) who was <strong>A3</strong>'s Namasuba land lady, and Christine Ahumuza (PW15) who was a tenant of PW12 at Namasuba, and <strong>A3</strong>'s Namasuba neighbour, both testified that they knew <strong>A3</strong> as Moses; and that<strong>A3</strong>, left the rented Namasuba houseprematurely, and without giving notice to the landlady. This of course corroborates the evidence by PW2 that <strong>A3</strong>, calling himself Moses, booked <strong>A10</strong> for the night at the Naigara Hotel; and that <strong>A3</strong>, 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 remittedmonies, on a number of occasions, to one Idris Nsubuga in Kampala; as is shown by the record of the remittances (<em>exhibit PE128</em>). This also corroborated the evidence of PW2 in that regard.</p> <p>Further corroboration of the evidence of PW2 about the remittances of money to him by <strong>A3</strong>, isprovided 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 <em>exhibits PE100 (a), (b),</em> and <em>(c)</em>. The other evidence corroborative of that of PW2, that <strong>A3</strong> 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.</p> <p>The evidence adduced by these witnesses, Juliet Kato (PW12) who was <strong>A3</strong>'s Namasuba landlady, and Christine Ahumuza (PW15) who was <strong>A3</strong>'s neighbour at Namasuba, as well as that of the handwriting expert (PW27), do not onlycorroborate PW2's evidence that indeed <strong>A3</strong>operated under the name of Moses in the execution of the Kampala bombing mission and thereafter, as has been pointed out above. They alsocorroborate PW2's evidence thatit was <strong>A3</strong>, 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 themin accordance with the specific instructions <strong>A3</strong> had given him; such as collecting <strong>A3</strong>'s properties from, and vacating, the Namasuba house.</p> <p>The evidence from the computer records atMalaba Immigration station shows that <strong>A10 </strong>crossed to Uganda through Malaba on 9th May 2010; and this is admitted by <strong>A10. </strong>Itwas seized upon by the defence to controvert the evidence by PW1 that he travelled with <strong>A10 </strong>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 liedto 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; butI am unable to attachmuchimportance to the disparity between the dates given by PW1 and <strong>A10 </strong>for coming to Malaba from Nairobi en route to Uganda.</p> <p>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, <strong>A10 </strong>had the benefit of his passport, as well as the record at the Ugandan Immigration station at Malaba, from whichhe established the specific date he crossed into Uganda. Be it as it may, what is of importance here is that both PW1 and <strong>A10 </strong>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 <strong>A10</strong> came alone as he maintains, is not that crucial for determining the truth or otherwise of their respective assertion.</p> <p>In <strong><em>Karsan Velji vs R. [1957] E.A. 702</em></strong>, 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: –</p> <p><em>"It is not, of course necessary to lay the date of an offence with precision, unless it is of the essence of the offence. <strong>R vs Dossi 13 Cr. App. R. 158</strong>; <strong>Archibold (33rd Edn.) 49</strong>; <strong>Kamau s/o Gikera and Others vs R. (1955) 22 E.A.C.A.539</strong>." </em></p> <p>The admission by <strong>A10 </strong>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 <strong>A10 </strong>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 <strong>A10</strong>– whom he would not have known– had travelled to Uganda, and through Malaba, around that time? Furthermore, the admission by <strong>A10 </strong>about his crossing into Uganda also corroborates that of PW2 that after <strong>A3 </strong>called him to expect a visitor he(<strong>A3</strong>) came to his (PW2's) house at Najjanankumbi, with <strong>A10 </strong>and delivered a bag, which later he (<strong>A3</strong>) showed him was containing explosives.</p> <p>The handwriting expert (PW27) who examined a known sample of the handwriting of <strong>A3</strong>, against the handwriting in the Guest Registration book of Naigara Hotel (<em>exhibit PE279</em>) made on the 9th May 2010, by one Moses, concluded in his report (<em>exhibit PE102</em>) that the two samples were written by the same person.In the case of <strong><em>Hassan Salum vs Republic [1964] E.A. 126</em></strong>, the handwriting expert had in his evidence before the trial Magistrate, stated that he had <em>'no doubt whatever'</em> 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:–</p> <p><em>"The only reported case which I have discovered which is of assistance in the present case is <strong>Wakefield vs Lincoln (Bishop) (1921) 90 L.J.P.C. 174</strong> in which Lord Birkenhead observed:</em></p> <p><em>'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'.</em></p> <p><em>I would refer also to a passage from the summing up of Lord Hewart in the trial of <strong>William Henry Podmore</strong> (I quote from the FAMOUS TRIALS SERIES as the only source available to me), when he said:</em></p> <p><em>'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.'</em></p> <p><em>I think the true answer was given by the witness in the <strong>Bishop of Lincoln</strong> 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 saying that they were written by the same hand.</em></p> <p><em>... ... There is a presumption that no two persons have identical fingerprints, but there is no presumption that no two persons have similar handwritings." </em>(<strong>emphasis added</strong>).</p> <p>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 myown 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; butbecause PW2 testified, that he saw <strong>A3</strong> write in the booking Register, the evidence is not entirely circumstantial. In <strong><em>Barland Singh v. Reginam (1954) 21 E.A.C.A. 209, </em></strong>at p. 211, the Court held that this type of circumstantial evidence, though not entirely inconsistent with innocence, maycorroborate 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 co–existing circumstance that would weaken or altogether negate it.</p> <p>The 'other evidence' that goes alongside this circumstantial evidence is in the testimony by PW2 that <strong>A3 </strong>personally booked <strong>A10</strong> in the Naigara Hotel; and that <strong>A3 </strong>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 <strong>A3</strong>, signed therein as Moses. This circumstantial evidence, though not entirely inconsistent with innocence, suffices to prove the guilt of <strong>A3</strong>, without the need to show the absence of a negating co–existing circumstance. In this regard therefore, the reportby PW27 (<em>exhibit PE102</em>), except for his excessive opinion,corroborates the evidence by PW2 that <strong>A3</strong>booked <strong>A10</strong>into Naigara Hotel for one night.</p> <p>'Witness I' (PW39), an FBI special Agent,tendered in evidenceforensic examinationfindings by one FBI scientist known as Richard Striker,that <strong>A3</strong>’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 (<em>exhibit PE117</em>), and D/AIP Icoot Robert (PW68) and D/SP Pius Caningom (PW69)alltestified that from there, they hadrecovered a mattress as well as other items they listed in the search certificate (<em>exhibit PE117</em>). This is the evidence which <strong>A3 </strong>seized up onto support his contention that the discovery of his DNA in the mattress cover, which wasrecovered from PW2's home,could possibly beexplained by the fact that he had spent a nightat PW2's house; albeit only once.</p> <p>However, the FBI report of the forensic examination also showed the finding oftraces of explosiveson the mattress cover; thus corroborating PW2’s evidence that he collected the mattress from <strong>A3</strong>’s Namasuba residence where <strong>A3 </strong>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<strong>A3</strong>'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 (<strong>A4</strong>) 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.</p> <p>The contention by <strong>A3 </strong>that he in fact spent a night at PW2's home at Najjanakumbi, which he claims could explain the presence ofhis DNAon the cover of the mattressrecovered 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 wantCourt to believe; butratherthat they enjoyeda close relationship. This would then corroborate PW2’s evidence that with regard to the Kampala mission, <strong>A3</strong>recruited him andmade him his (<strong>A3</strong>'s) confidante in the execution of the terrorist mission in Kampala; and to carry out certaininstructions after the July 2010 twin blasts, as has been shown above in his testimony.Accordingly then, <strong>A3</strong>should not be allowed to eat his bread and still hope to have it at the same time.</p> <p><strong>A3</strong>made anextra–judicialstatement toHis Worship Francis Kobusheshe (PW3) on the 10th of August 2010; and it was admitted in evidence as <em>exhibit PE94</em>.In it, <strong>A3</strong> 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 themin 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 chosehim 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.</p> <p>Pursuant to this, he came to Uganda in January 2010 to carry out surveillance for the best places to execute the mission; andin May 2010, he rented a house in Namasuba for the mission. He disclosed further therein that he recruited PW2, and his brother <strong>A4 </strong>to participate in the mission. He collected explosives from National Theatre Kampala, delivered by <strong>A10 </strong>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 livedin 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.</p> <p>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 <strong>A4</strong> to take Kakasule the suicide bomber to Ethiopian Village Restaurant, and also totake 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<strong>A4</strong> and PW2 was to evacuate his Namasuba house upon the planned bomb blastshaving 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.</p> <p>Her Worship Agnes Nabafu (PW4) recorded the extra–judicialstatement of <strong>A4</strong>; who revealedthat he is brother to <strong>A3 </strong>and <strong>A13</strong>. He disclosed that two weeks before the Kampala July blasts 2010, <strong>A3 </strong>recruited him into the mission to attack Kampala; and briefed him on what he (<strong>A3) </strong>wanted him (<strong>A4) </strong>to do. He accompanied<strong>A3</strong>and PW2 to carry outthe surveillance on the Makindye House, and <strong>A3</strong> showed him Ethiopian Village Restaurant also, where <strong>A3 </strong>wanted him to take the explosives to.<strong>A3 </strong>then took him to Namasuba house, and introduced him as Abdul Karim to two people he found staying there; and he (<strong>A3</strong>) told him that these two (one of whom was a Somali looking person and the other a dark person) were the persons he would be staying with at the Namasuba house.</p> <p>After this,<strong> A3</strong> showed him the bags he (<strong>A4) </strong>was to take and drop, one each, at Makindye House and Ethiopian Village Restaurant respectively. He also showed him the jackets, which were to be used in the mission.He and <strong>A3</strong>then came to town; where from,<strong> A3</strong> gave him money and instructed him to buy two used phonesfor 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.</p> <p>However, at the trial, both <strong>A3</strong>, andA4, retracted their respective extrajudicial statements. I then had toconduct a trial within a trial in each case; at the end of whichI made a finding that the judicial officer (PW3) who recorded <strong>A3</strong>'s statement, satisfactorily complied with the procedure required for recording such extra–judicial statement. The assertion by <strong>A3 </strong>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.</p> <p>As for <strong>A4</strong>, his extra–judicial statement was admittedly, in certain respects<strong>, </strong>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 <strong>A4</strong>, because although PW4 did not record any caution as having been administered to him,<strong> A4 himself</strong> testified that he accepted the charges against him, though out of fear; thereby disclosing that he was in fact informed of thecharges against him. At the trial, <strong>A4 </strong>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 thathe successfully resisted a concerted attempt to sodomize him; by kicking one of his assailantsdown. However, one of them seized his genitals; which paralyzed and over powered him.</p> <p>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 understandwhy, apparently without a fight, <strong>A4</strong> succumbed to eating pork, which he knows to bean abomination; but on the other hand,he vigorously foughtand overcame the attempt to sodomize him. I find his assertion thatpolice officer Godi (now deceased) sat next to the Magistratewhen hegave his extra–judicial statement to the Magistrate (PW4), andkept 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.</p> <p>With regard to the instant extra–judicial statement, which <strong>A4</strong> now retracts, I would have probably believedhim if the non–compliance by the judicial officer were merely procedural; such as forgetting to have <strong>A4</strong> 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 non–compliancewith the rule laid down for recording such statement. </p> <p>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, <strong>A3</strong> and <strong>A4 </strong>have made confessions amounting to'<em>a full admission of their individual guilt'</em>in the commission of the offence charged.In it, they do not only fully, and unreservedly, incriminate themselvesas being guilty of committing the offence for which they have jointly been charged; but they both alsoimplicate 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:–</p> <p><em>"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."</em></p> <p>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 theretracted extrajudicial statements made by <strong>A3</strong> and <strong>A4</strong>. In <strong><em>Ezera Kyabanamaizi &amp; Ors vs R. [1962] E.A. 309</em></strong>, none of the appellants had given evidence on oath; but they had, each, only made an unsworn confession statements. The Court distinguished between a sworn and an unsworn statement, at p. 314, as follows:–</p> <p><em>"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:</em></p> <p><em>'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.'</em></p> <p><em>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; <strong>Muthige vs R. (1954) 21 E.A.C.A. 267</strong>. 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:</em></p> <p><em>'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 a greater degree, it is then only that it can afford a sort of safeguard for truth. </em></p> <p><em>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.</em></p> <p><em>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 a 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 co–accused. 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. </em></p> <p><em>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.'"</em></p> <p>In their respective confession statements, <strong>A3 </strong>and<strong>A4</strong> 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 theirrespective 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 findthat each of them made their confessions voluntarily; hence, their confessions must be true. Accordingly, I take their confessionsinto considerationas 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.</p> <p>However, I am quite mindfulof the fact thateach of the confessionsI am taking into considerationcan never be the basis for a conviction; as, on a proper direction, accomplice evidence can be<em>.</em>I can only find out if, from other independent evidence proved in Court, either of the confessionssupplementsa substantial case existing against the individual confessor or the co–accused persons named therein. I find that <strong>A3</strong>'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 <strong>A3,</strong> in this regard.</p> <p><strong>A3</strong>'s detailed narrative in his confession on how he recruited PW2 and <strong>A4</strong> into the mission, and deployed them in the execution of the Kampala attacks, supplements the evidence by PW2, and the confession by <strong>A4</strong>, on how <strong>A3</strong> recruited and deployed themfor that purpose. It also supplements the evidence by PW2 that <strong>A3</strong> delivered a bag containing explosives to him at Najjanakumbi.<strong>A3</strong>'s confession also supplements that of Juliet Kato (PW12) who was <strong>A3</strong>'s Namasuba landlady, and Christine Ahumuza (PW15) who was a tenant of PW12, and <strong>A3</strong>'s Namasuba neighbour). Both of them testified that they knew <strong>A3</strong> as Moses; and that <strong>A3 </strong>left the rented Namasuba houseprematurely, and without giving notice to the landlady. <strong>A3</strong>'s confession also supplements the evidence by PW2, and the confession by <strong>A4</strong>, that he (<strong>A3</strong>) kept suicide bombers in the Namasuba safe house.</p> <p>This confession by <strong>A3</strong> also supplements the evidence by PW2, and the confession by <strong>A4</strong>, that after instructing them to evacuate his properties from the Namasuba house, he (<strong>A3</strong>) left Kampala for Nairobithe day before the Kampala twin blasts. It also supplements the evidence by PW31, PW59, and PW78 that the Kenyan tel. Nos. attributed to <strong>A3</strong>by <strong>A1 </strong>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 fromMombasa, supplements the evidence by PW2 that <strong>A3</strong>, using the name Moses Huku, remitted funds to him from Mombasa; andalso theevidence by the Mombasa manager of Biashara Forex Bureau (PW52),and the Kampala branchAccountant forthe Forex Bureau (PW23),regarding the money transfers made by Moses Huku from Mombasa.</p> <p>Finally, his confessionthat 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 <strong>A4</strong>, that he <strong>(A3) </strong>left Kampala for Kenya the day before the Kampala blasts, due to his fearthat, owing to his record with the police,they would arrest him if the blasts took place when he was in Kampala.The confession by <strong>A4</strong> on his dealings with <strong>A3</strong>, supplements and lends assurance to the evidence by PW12 (the Namasuba landlady)that <strong>A3 </strong>rented her house at Pala Zone Namasuba; but left prematurely, and without giving her any notice. It also supplements that ofPW2 thatit was in this house that <strong>A3</strong>kept the explosives, as well as thecell members including the suicide bombers who were later deployed at Kyadondo Rugby Club and Ethiopian Village Restaurant.</p> <p><strong>A4</strong>'s confession equally supplements PW2's evidence on <strong>A3</strong>'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 <strong>A4, </strong>together with the respective suicide bombers assigned to each of them, withthe explosives,for the execution of the mission. This confession also supplements that of <strong>A3</strong> himself, which details his (<strong>A3</strong>'s) role, together with <strong>A4</strong> and PW2, in the execution of the Kampala attacks; as has been shown above by other independent evidence. <strong>A4</strong>'s confession, further still, supplementsthe evidence by PW2 that he removed <strong>A3</strong>'s mattressand other items from <strong>A3</strong>'s rented Namasuba house,and took them to his (PW2's) house in Najjanankumbi, pursuant to <strong>A3</strong>'s instructions before he left for Nairobi.</p> <p>True,<strong> A3</strong> first kept the explosives at PW2's Najjanankumbi; but later relocated them to his (<strong>A3</strong>'s) Namasuba house; wherethey were finally connected and wired from.This therefore serves to negate the contention by <strong>A3</strong>in his unsworn statement at the trialthat the fact that he had once spent a night at PW2's residence, after attending a party together with PW2, explainsthe discovery by the FBI of a predominant presence of his DNA on the mattress cover recovered from PW2's house at Najjanankumbi. The confession by <strong>A4</strong>also supplements PW2's testimony that after <strong>A3</strong> had issued the instructions for the final execution of the mission, he left Kampala for Nairobi one daybefore the impending bombblastswere to occur.</p> <p>It is manifest from the confessions made by<strong>A3</strong>and <strong>A4,</strong> that they are both accomplices in the crime for which they have jointly stood trial with the other accused persons. However, both <strong>A3 </strong>and <strong>A4 </strong>did not make their confessions on oath; soit would be improper and inadvisable to treat them in the category of the other accomplices, such as PW1 and PW2, whotestified 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 <strong>A3</strong>and <strong>A4</strong>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.</p> <p>In this I am bolstered by the case of <strong><em>Girisomu Bakaye and Others vs Uganda [1965] E.A. 621</em></strong>, 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: –</p> <p><em>"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. </em></p> <p><em>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."</em></p> <p>In the matter before me, prosecution adduced evidence that <strong>A4</strong> 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 <strong>A4</strong>'s retracted confession that he did participate in the Kampala bombing mission. In the <strong><em>Ezera Kyabanamaizi &amp; Ors vs R.</em></strong> 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:–</p> <p><em>"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'.</em></p> <p>At p. 318, the Court further stated as follows:–</p> <p><em>"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 (<strong>Bassam and Another vs R. [1961] E.A. 521 (C.A.) at p. 530</strong>). 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. </em></p> <p>In <strong><em>Asoka vs Republic [1973] E.A. 222</em></strong>, the trial judgestated 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: –</p> <p><em>"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 <strong>Anyango vs Republic [1968] E.A. 239</strong>, this Court said at p. 322:</em></p> <p><em>'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' (<strong>Anyuna s/o Omolo vs R. (1953) 20 E.A.C.A. 218</strong>); and can only be used as lending assurance to the other evidence against the co–accused (<strong>Gopa s/o Gidamebanya vs R. (1953) 20 EACA 318</strong>)</em><em>.' </em></p> <p><em>... ... In the judgment of this Court in the <strong>Gopa</strong> case,this Court ... ... after approving various quotations from <strong>Sarkar on Evidence</strong>, 9th Ed, and of <strong>Monir's Evidence</strong>, 3rd Ed., said at p. 322:</em></p> <p><em>'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 that approach is the wrong one and that a confession can only be used as lending assurance to other evidence against the aco–accused, evidence which only falls short by a very narrow margin of the standard of proof necessary for a conviction.'</em></p> <p><em>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."</em></p> <p>Inthe instant case before me, I have warned myself on the danger of acting on the retracted confessions by <strong>A3</strong> and <strong>A4</strong>, without corroboration. It is evident that the two confessions do notonlylend assurance to the other evidence adduced before Court,pointing to the participation of <strong>A3 </strong>(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, whichI have identified above. Such evidence includes that of Police Officers (PW59 and PW78), on the use of the name Basayevu by <strong>A3</strong>; the Namasuba landlady (PW12), on the renting and unexplained premature vacating of her rented house by <strong>A3</strong>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 <strong>A3</strong>participated in committing the crime of terrorism.</p> <p>In <strong><em>Karsan Velji vs R. [1957] E.A. 702</em></strong>, 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: –</p> <p><em>"In <strong>Robert Sinoya and David Sinoya vs R. (1939) E.A.C.A. 155</strong>, 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  ... </em>[given]<em> 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 (<strong>Miligwa s/o Mwinje vs R. (1953) E.A.C.A. 255</strong>); and he should have looked for independent corroborative evidence implicating the appellant in a material particular."</em></p> <p>In <strong><em>Fabiano Obeli and Others vs Uganda [1965] E.A. 622</em></strong>, 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 <em>'with the greatest caution'</em>. On appeal, the Court stated at p. 623 as follows: –</p> <p><em>"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. </em></p> <p><em>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. </em></p> <p><em>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 <strong>Bassan and Wathobia vs R. [1961] E.A. 521</strong>, at p.530:</em></p> <p><em>'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.'."</em></p> <p>In <strong><em>Tuwamoi vs Uganda [1967] E.A. 84</em></strong> 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: –</p> <p><em>"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."</em></p> <p>At p. 89, the Court stated as follows: –</p> <p><em>"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." </em></p> <p>With regard to whether a retracted statement should be treated differently from a repudiated one, the Court stated from pp. 90–91 as follows:–</p> <p><em>"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."</em></p> <p><strong>Conduct incompatible with innocence, as corroboration</strong>:-</p> <p>PW2 testified, and <strong>A4</strong>alsostated in his extrajudicial–statement admitted in evidence, that <strong>A3</strong> gave them instructions, thendeparted for Nairobi the day before the execution of the scheduled explosions at Kyadondo Rugby Club, Ethiopian Village Restaurant, and Makindye Houseto 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 <strong>A3</strong>'s landlady (PW12), and PW2, and stated by <strong>A4</strong> in his extra–judicial statement,<strong>A3</strong> left his rented premises at Namasuba prematurely, andwithout informingPW12 of his termination of the tenancy. He instead left it to PW2 and <strong>A4</strong>to collect his properties from the rented premises.<strong>A3</strong>'s conduct was entirely incompatible with innocence; andit corroborates the evidence adduced by PW1 and PW2, as well as the extrajudicial statements he and <strong>A4</strong>made,about his<strong>A3</strong>'s central role in the execution of the mission.</p> <p>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 (<strong>A3</strong>) 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 (<strong>A3</strong>) is certainly guilty of the offence of terrorism c/ssection 7(2) of the Anti Terrorism Act, 2002, as charged; and I accordingly convict him of that offence.</p> <p><strong>(ii) Participation of Hussein Hassan Agade (A1)</strong></p> <p>The evidence adduced by PW1is that when he went to Somalia in 2009, among those he found at an Al–Shabaab camp in Kismayu was <strong>A1</strong>, who he knew then as Hassan. He and <strong>A1</strong>had their militarytraining 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 phonebearing IMEI (Serial No.) 351528042707070 (<em>exhibit PE185</em>)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.</p> <p>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 &amp; Lighting Company overelectricity bill for meter A/c No.2759149-01 (<em>exhibit PE159</em>).</p> <p>This meter was traced to the property of 'Witness L' (PW53) who identified its user ashis tenant then, Hussein Hassan. PW53 provided Police with the tenancy agreement between himself and Hussein Hassan (<em>exhibit PE129</em>),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 <em>exhibit PE135</em>. Hussein Hassan(<strong>A1</strong>) was arrested by Police officer No. 58309 Sgt. Kenedy Osare Rasugu (PW48), and was found with a phone (<em>exhibit PE295</em>) having a Simcard bearing this tel. No.254715855449; and he made a handwritten inventory, and a typed one, both of which <strong>A1</strong>duly signed (<em>exhibits PE123(a)</em> and <em>PE123(b)</em>). Upon his arrest, <strong>A1</strong> 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 <strong>A3</strong>.</p> <p>Police officerAIGP 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.)359338035921630with two Kenyan tel. Nos.; namely 254715855449 and 254732812681when they were roaming in Uganda; as is shown by the CDRs for the two Kenyantel. Nos. (<em>exhibits PE322</em> and <em>PE350 respectively</em>).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.</p> <p>The analysis showed that the two Kenyan tel. No. 254715855449 (registered in the name of <strong>A1</strong>, 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 <strong>A1</strong>'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<strong>A5</strong>), and also with tel. No. 254719706497 belonging to<strong>A3</strong>. Furthermore,<strong> A1’s</strong> tel. No. 254715855449also sharedanother phone bearing IMEI (Serial No.) 35933803898908 with <strong>A3</strong>'s tel. No.254719706497.<strong>A1</strong>'s tel. No. 254715855449 had also sharedanother phone bearing IMEI (Serial No.) 35822903686264 with <strong>A3</strong>'s tel. No.254719706497.</p> <p>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<strong>A1</strong>informed police that <strong>A3</strong>was the user of tel. Nos. 254719706497 and 254732812681.Further analysis by PW59established that <strong>A1</strong>’s tel. No. 254737588445 communicated with three tel. Nos. between 22nd June 2010 and 10th July 2010. It communicated eight times with<strong>A3</strong>’s tel. No. 254732812681 between 30th June 2010 and 1st July 2010; twenty fourtimeswith tel. No.254732783568 between 3rd July 2010 and 10th July 2010; and nineteen timeswith tel. No. 254734045678 between 22nd June 2010 and 23rd June 2010.All these communications were by SMS only.</p> <p>Analysis of the CDR of <strong>A1</strong>’s tel. No. 254715855449 shows it communicated forty nine times with <strong>A2</strong>’s tel. No. 254720945298 (<em>exhibit PE134</em>) between 1st June 2010 and 10th July 2010.It communicated 49 times with <strong>A3</strong>’s tel No. 254719706497 (<em>exhibit PE137</em>) between 1st of June 2010 to 10th of July 2010. It also communicated fifteen times with <strong>A3</strong>’s tel. No. 254700745965 between 1st of June 2010 to 10th July 2010.It communicated fourteen times with <strong>A7</strong>’s tel. No.254771666668, and also communicated nine times with <strong>A11</strong>’s tel. No.254735766637. It also communicated once with <strong>A6</strong>’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.</p> <p>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 (<strong>A7</strong>), confessed his role in the terrorist activities. He also revealed that on the day the explosives were being transported to Kampala, <strong>A10</strong>called him and informed him of the arrest of PW1 over his documents; and requested him to call <strong>A11</strong> to give the contact of another person in Kampala to receive the bags containing the explosives. He called and met <strong>A11</strong> in Nairobi; and gave him the information from <strong>A10</strong> regarding PW1. At the request of <strong>A11</strong>, he called <strong>A1</strong> who joined them. After a discussion between <strong>A1</strong>, <strong>A11</strong>, and one Jabir, which he did not attend, they asked him for <strong>A10</strong>'s tel. contact.</p> <p>In his unsworn statement at the trial, <strong>A1</strong> who testified as DW9 denied the offence. He also denied that heimplicated 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 <strong>A2</strong>; but as his fellow street preacher. He however denied any prior knowledge of<strong>A3</strong> and <strong>A11</strong> before he metthem in prison. He denied ever being in Somalia; and pointed out that infact PW1, whom he remindedCourt was a confessed liar, had not named him in his (PW1's) extra–judicial statement (<em>exhibit DE1</em>) as one of the persons he (PW1) claims to have been with in Somalia.</p> <p>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.<strong>A1</strong> also admitted that he was a tenant ofPW53; 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.</p> <p>The prosecution has however urged me to consider evidence adduced in Court, which it contends corroborates the evidence of PW1 about the participation of <strong>A1 </strong>in the commission of the offence of terrorism with which he has been charged. Theseinclude the trail of telephone calls showing a beehive of activities between the phone sets and telephone numbers which the police officers analyzed and linked<strong>A1</strong>to<strong>A3</strong>, and to Namasuba where<strong>A3 </strong>had a safe house. From this beehive of activities, a pattern is clearly discernible; revealing a trail beginning with theSIM 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 <strong>A1</strong>, which have been established to have been used by,and or found with,<strong>A3</strong>.</p> <p>The analysis of the cobweb of phone activities reveal that during the period leading to the Kamplala blasts, the phone traced to <strong>A1</strong>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.PW1testified that he and<strong>A1</strong>,together with other persons,trained and fought in Somalia; and further, that it was <strong>A1</strong> who, from prison,revealedto him the names of the Kampala suicide bombers as Kakasule and Mursal. In his confession statement,<strong> A7 implicates</strong> <strong>A1 </strong>of participation in the Kampala mission; thereby supplementing and lending assurance to the evidence by PW1 of <strong>A1</strong>'s participation. His participation is also corroborated bythe trail of his phone calls, linking him to <strong>A3 </strong>and to the phone and SIM card recovered from the Makindye House.</p> <p>The irresistible inferenceone would naturally draw from the use of sms, and the geo–location of the calls being mainly the Namasuba area,where<strong>A3</strong>had a safe house for the Kampala attack mission, is that<strong>A1</strong>must have been playing a coordinating role in the mission.Tel. Nos. 254719706497 and 254732812681, which according to Police officer Christopher Oguso (PW59),<strong> A1</strong> hadrevealed to policeasbelonging to <strong>A3</strong>, are the very tel.Nos. Aidah Nabwami hadalso revealed to Namara Robinson(PW31)as belonging to her brother in law (<strong>A3</strong>).PW31 also testified thatAidah Nabwami, from whom the phone set (<em>exhibit PE299</em>) was recovered,told him that she had been given the phone by (<strong>A3</strong>); thus corroborating <strong>A1</strong>’s information to PW59 and PW78 about his dealings with <strong>A3</strong>. It also corroborates PW1's evidence that he (PW1), <strong>A1</strong>, and <strong>A3</strong>, were together in Somalia with, and fighting for, the Al–Shabaab.</p> <p>The revelation of the names of the suicide bombers by <strong>A1</strong> to PW2, from prison,means first that he was deeply involved in the Kampala mission; and second, it gives credence to PW1's evidence that he and <strong>A1</strong>were together in Somalia and were together involved in the missionto attack Uganda.Itis worthy of notethat the period between May to July, when the Kenyan tel. Nos. were roaming in Uganda, operatingmainly from the Namasuba geo–location, was the periodwhen,from the testimonies ofPW1 and PW2, cell members, suicide bombers, and the explosives, were delivered at <strong>A3</strong>'s Namasuba house; from where they were eventually dispatched to the various venues for detonation. This corroborates PW1's and PW2’s evidence that preparations for the blasts were made during this periodwhen <strong>A3</strong>, whom evidence shows <strong>A1 </strong>was linked to, was based at theNamasuba house coordinating and supervising the preparations for the blasts.</p> <p>It is also noteworthy that the various tel. Nos. hitherto in use, were switched off just before the Kampala blasts; as itstrongly points at a design meant to lose their trail, and thereby dissociate the users from the Kampala bombings. The circumstantial evidence provided by <strong>A1</strong>'s phone details and activities linking him to <strong>A3</strong> and the Namasuba geo–location, therefore corroborates that of PW1 regarding <strong>A1</strong>'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.</p> <p>Owing to the damning evidence linking his phone and tel. Nos. to <strong>A3</strong> and the phone recovered from the unexploded explosive device found at Makindye House, I think it was in <strong>A1</strong>'s interesttoexplain 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 <strong><em>Abdu Ngobi vs Uganda, </em></strong><em>(supra)</em>,the Supreme Court expressed itself as follows, with regard to the need for the defence to provide some explanatory evidence:–</p> <p><em>“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.”</em></p> <p>In the two combined appeals of<strong><em>(1) R. v. Sharmpal Singh s/o Pritam Singh; (2) Sharmal Singh s/o Pritam Singh v. R </em></strong>(supra), the Privy Council stated at pp. 17 –18 that: –</p> <p><em>“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.”</em></p> <p>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 <strong>A1</strong>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 himthe opportunityto punch a hole in an otherwise strong prosecution case against him; andthus enableCourt to also look at the other side of the coin, as it were. It certainly avoids therisk of Court having to determine his guilt, or otherwise, basing on the evidence adduced by the prosecution alone.</p> <p>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 (<strong>A1</strong>) 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.</p> <p><strong>(iii) Participation of Idris Magondu (A2) </strong></p> <p>Police officers PW59 and PW78testified that upon arrest of<strong>A1</strong>his   phone book was found to have tel. No.254720945298, which he revealed was the contact for <strong>A2</strong>,whom he revealed was his accomplice in the Kampala bombing mission. This tel. No. was established to be registered in the name of <strong>A2. </strong>Police officer No. 72600 Sgt. Stephen Musyoki Munyao (PW55) testified that he tracked this Safaricomtel. No.254720945298; and it led him to <strong>A2 </strong>whom he arrested, and from whom herecovered a phone (<em>exhibit PE297</em>) with a SIMcard of thattel. No.254720945298.The inventory for the recovery of the phone, which PW55 made is <em>exhibit PE305</em>. The call data record (CDR) of tel. No.254720945298 is <em>exhibit PE134</em>, and the report of the analysis of the call data record (CDR) for this tel. No., is <em>exhibit PE157</em>.</p> <p>Analysis of <em>exhibits PE134</em> and<em>PE297</em>, and consideration of the testimony of PW59, show extensive communication between <strong>A2</strong>'s tel. No.254720945298 and <strong>A1</strong>'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.<strong>A2</strong>'s tel. No.254720945298 communicated 18 times, between 2009 to 2010, with tel. No.254722366634 (registered in <strong>A9</strong>’s name). Police officer (PW59)testified further that<strong>A2</strong> led them (police) to the house of <strong>A11</strong>’s mother in Nairobi where they learnt fromone Jaffer Ali, a brother to <strong>A11</strong>,that <strong>A11</strong> had gone to Tanzania with wife; and this led to the arrest of <strong>A11</strong>from Tanzania.</p> <p>In his defence, <strong>A2 </strong>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 thathis tel. No. was +254724376909; which he used for communication with <strong>A1</strong>, a fellow street preacher in Nairobi.He conceded having communicated with <strong>A9</strong>; but explained that this was because <strong>A9</strong>was a driver of a truck, which ferried his kids to school.He contended that no evidence was adduced in Court that tel. No. +254720945298 was registered in his name. He also pointed out that PW55 neither recordedthe IMEI (serial No.) of the phone recovered from him; nor the SIM for the tel. No. found in it. He pointed out that only <strong>A1</strong> had told police that he (<strong>A2</strong>) was responsible for organizing transportation of suicide bombers to Kampala. He admitted the evidence of PW55regardingthe search at his place, andhis arrest.</p> <p>The recovery of a phone containing a SIM of tel. No. +254720945298 from <strong>A2</strong> was strong evidence that he was owner of that phone; and corroborated <strong>A1</strong>'s information to police that <strong>A2</strong> was the owner of that tel. No. Since <strong>A2 </strong>led Police to the house in Nairobi, from where police got information that <strong>A11</strong> had gone to Tanzania, leading to the arrest of <strong>A11</strong> there from, it further corroborates <strong>A1</strong>'s information to police that <strong>A2</strong> was his accomplice in the mission to attack Kampala. The contention by <strong>A2</strong> that no one else, apart from <strong>A1</strong> in his information to police, had associated him with having arranged the transportation of the suicide bombers to Kampala is not of any consequence. First, there is no rule requiring a plurality of witnesses to prove a case.</p> <p>Second, in the instant case before me, there is the evidence that upon <strong>A1 </strong>leading police to him as an accomplice, <strong>A2</strong> was found in possession of a phone containing the SIM of the tel. No. +254720945298, which was established to be registered in his name. Furthermore, he (<strong>A2)</strong> himself led police which was looking for <strong>A11</strong>, to <strong>A11</strong>'s mother; and this led to the arrest of <strong>A11</strong>. Third, as was pointed out in the case of<strong><em>Wainaina &amp; Others vs Republic [1973] E.A. 182</em></strong>, at p. 184, there is no requirement for corroboration of evidence by the police. Once the police adduces evidence, which Court finds to be cogent, as is the case here, with regard to the issue of <strong>A2</strong> being the registered user of tel. No.+254720945298, then in the absence of evidence to controvert it, Court will, as I hereby do, take the evidence as the truth.</p> <p>In any case even if the police evidence were not reliable, I would still have applied the decision in the case of<strong><em>Oketcho Richard vs Uganda S.C. Crim. Appeal No. 26 of 1995</em>, </strong>whichis authority for the proposition that: – </p> <p><strong><em>“</em></strong><em>Where there is no reliable independent evidence to support the complainant’s claim, it is the duty of the court to very carefully weigh the available evidence.”</em></p> <p>In the event, I find that there is ample evidence pinning Idris Magondu (<strong>A2</strong>) as having fully participated in the execution of the Kampala attacks; for which he has been charged with the offence of terrorism. I find him guilty as charged; and accordingly convict him.</p> <p><strong>(iv) Participation of Yahya Suleiman Mbuthia (A6) </strong></p> <p>Charles Kyalo (PW45) the Caretaker of Kaigokem Apartments at Kawangare Nairobi, testified that in 2010 <strong>A11</strong>, who introduced himself to him as Mustafa,came and inspected an apartment to rent. <strong>A11 </strong>was in the companyofsomeone whom he (PW45) identified in Court as <strong>A6</strong>. Later, however, Benson Mutisya (PW44) the Managing Estate Agent for Kaigokem Apartments, told him (PW45) that <strong>A11</strong> had executed a tenancy agreement and paid rent under the name of Mohamed Ali Mohamed. Indeed, when <strong>A11 </strong>came to occupy the apartment, his receipt for payment of rent had the name Mohamed Ali. Later, <strong>A6</strong> came with the keys to the apartment, collected Mohamed Ali's properties there from; and left the keys to the apartment with him (P45).</p> <p>Benson Mutisya (PW44) testified that around the 28th June 2010, <strong>A11 </strong>executed a tenancy agreement (<em>exhibit PE341</em>) with him for one month in respect of one of the apartments ofKaigokem Apartments.However, two weeks later, <strong>A11</strong> sent his brother whom he (PW44) identified in Court as <strong>A6</strong>, to vacate the apartment and collect the refund of the balance of the rent paid. He (PW44) authorized the clearing of the house, drew a cheque (<em>exhibit PE343</em>) in favour of <strong>A11</strong>, and gave a covering letter (<em>exhibit PE342</em>) for it. Police officer No. 61437 Sgt. Ezekiel Lulei (PW47) testified that he searched the house of <strong>A6 </strong>at Dagoreti, when he ((PW45)) had already been arrested; and recovered a cheque, and a letter authorising evacuation, from a Koran.</p> <p>Police officer (PW59) testified that Amina Shamsi (wife to <strong>A11</strong>) informed police that her husband had introduced <strong>A6</strong> to her as someone to contact in case of any problem. She gave the police, tel. No. 254737367444 as <strong>A6</strong>'s contact.The analysis of the call data record (CDR)for<strong>A6</strong>'s tel. No. 254737367444 (<em>exhibit PE151</em>) shows that it communicated with <strong>A11</strong>'s tel. No. 254732485079 between 4th August 2010 to 12th August 2010; using theSMS mode of communication only. The analysis of the call data record (CDR) for <strong>A11</strong>'s tel. No. 254732485079 shows that it was activated on 4th August 2010, and was switched off on 12th August 2010; and it communicated only with <strong>A6</strong>'s tel. No. 254737367444, and using the SMS mode of communication only, as has been pointed out above.</p> <p>In his defence, <strong>A6</strong> gave his statement not on oath; and made a blanket denial ofparticipation in the Kampala bombings. He admitted that Habib Suleiman Njoroge (<strong>A7</strong>)and Selemani Hijjar Nyamandondo (<strong>A10</strong>) are his brothers. He denied that he and <strong>A11</strong> had known each other, or that he collected <strong>A11</strong>'s properties from <strong>A11</strong>'s vacated rented house, and the rental refund. He even denied that the house in Dagoreti, where these cheque and covering letter were found, was his; or that the lady, Lydia, found in the house was his wife. He pointed out that the police did not involve him in the search of this home; and yet he was already in their custody. He denied that tel. No. 254737367444, which communicated with tel. No. 254732485079only, was his. He also denied communicating with <strong>A9</strong>; and contended that at the material time, he was in Juba working with an NGO.</p> <p>I must be quite clear here that I reject the blanket denial by <strong>A6</strong>as a pack of lies.I am fully convinced by the prosecution evidence that <strong>A6 </strong>accompanied <strong>A11</strong> in the search for an apartment at the Kagokem apartments; and later when <strong>A11 </strong>prematurely terminated the tenancy, he (<strong>A6) </strong>returned the keys for the apartment, and collected the cheque for the balance of the rent on behalf of <strong>A11</strong>. I also believe that indeed <strong>A11 </strong>introduced <strong>A6</strong> to his wife Amina Shamshi, as someone she could rely on in his absence; in case of need. Furthermore, I do believe that tel. No.254737367444 belonged to <strong>A6</strong>; and that in the period stated by the prosecution, it communicated with tel. No. 254732485079 only; and by SMS mode of communication only.</p> <p>However, in my considered view, the evidence above does not without more, pin <strong>A6 </strong>as having participated in the commission of the Kampala bombings. Unlike with <strong>A7</strong>, where there is some other evidence independent of <strong>A11 </strong>having advised his wife to rely on him in times of need, the case of <strong>A6</strong>is just the word of mouth of Amina Shamsi to the police; and no more. It is quite probable that indeed, <strong>A6</strong> knew of some criminal activities of <strong>A11</strong>; but there is no evidence that such criminal activity was the mission to attack Uganda. Furthermore, <strong>A11</strong>could have been engaged in some other criminal activity, which <strong>A6</strong>was aware of, but different from his participation in the execution of the Kampala bombings, which <strong>A6</strong> might not have known of. Even if <strong>A6</strong> knew of <strong>A11</strong>'s activities regarding the Kampala bombings, he might have been either just sympathetic to, or unconcerned with, it.</p> <p>In the case of<strong><em>Khatijabai Jiwa Hasham v. Zenab d/o Chandu Nansi [1957] E.A. 38</em></strong><strong>, </strong>the Court had to deal with a situation where the Defendant had lied to Court. Sir R. Sinclair, V.P. stated, at p. 51, as follows:–</p> <p><em>“It seems clear that, on a most material point his original evidence was deliberately untruthful, and if the case were to be decided on a mere balance of probabilities this would weigh very heavily against him. But the burden of establishing fraud lay on the appellant and was a heavy burden as it must always be. It could not be discharged merely by showing that the respondent was unreliable.”</em></p> <p>In<strong><em>Omari s/o Hassani v. Reginam (1956) 23 E.A.C.A. 580</em>, </strong> the appellant had been convicted on the statement of the deceased; and the trial Judge had drawn an adverse inference of guilt from his refusal to testify on oath, when the prosecution had according to the trial Judge <em>‘raised a fairly strong case against the accused'</em>. The Court of Appeal disagreed; and clarified, at p. 581, that:–</p> <p><em>“... a ‘fairly strong’ case is not in ordinary language the same as a case proved beyond reasonable doubt. … A Judge is, of course, entitled to take into account an accused person’s refusal to give evidence on oath, but not to use such refusal to bolster up a weak case or to relieve the prosecution from proving its case beyond reasonable doubt. Nor can such a refusal amount of itself to corroboration of evidence which requires to be corroborated”</em></p> <p>In the case of<strong><em>Gas Ibrahim v. Rex (1946) E.A.C.A. 104</em></strong>, the appellant had offered evidence in defence, which the trial judge had characterized as ‘nonsensical’; and had convicted him. In quashing the conviction, the Court of appeal, stated at p. 106 as follows:–</p> <p><em>“It is our view that where the prosecution case failed on its merits owing to the lack of the corroboration which the learned Judge found was necessary, that lack of corroboration cannot be remedied by the mere fact that the appellant put up a false and perjured defence. If an accused person in giving evidence in his defence commits perjury he can be punished for that offence. But his perjury cannot be prayed in aid to secure a conviction for murder where the evidence for the prosecution does not justify that conviction.”</em></p> <p>It is also important to take cognizance of the fact that although he is a brother toHabib Suleiman Njoroge (<strong>A7</strong>) and Selemani Hijjar Nyamandondo (<strong>A10</strong>), there is no evidence that he (<strong>A6</strong>) participated in any way in the planning, or execution of the plan to attack Uganda; which was given effect to by the Kampala bomb blasts. It is therefore my considered view that the evidence adduced against <strong>A6, </strong>does not cross that requisite legal thresholdnecessary to amount to proof beyond reasonable doubt that he participated in the planning or execution of the Kampala bombings. Hence, it is myfinding that the prosecution has failed to discharge the burden, that lay on it, to establish the guilt of <strong>A6</strong>; and for this reason, I have to acquit him of the offence of terrorism; with which he has been indicted.</p> <p><strong>(v) Participation of Habib Suleiman Njoroge (A7) </strong></p> <p>PW1testified that he first met <strong>A7</strong>in 2009 is Somalia;where theyunderwent military training with<strong>A7</strong> and others at Al Shabaab camps.They fought several battles together under the Al Shabaab. In Somalia, <strong>A7 </strong>was known as Imam; and he (PW1) learnt of <strong>A7</strong>'s name as Habib from prison. In Somalia, <strong>A11</strong> was called Julaibib; while<strong>A3</strong> was known as Basayev, and <strong>A1</strong> was known as Hassan. He (PW1), <strong>A7</strong>, <strong>A3</strong>, and <strong>A11</strong>, were members of the team constituted to attackUganda; and they were given special training for that mission.On the second occasion when he (PW1) went to Somalia, he travelled on a bus together with <strong>A7</strong>. Later, when he was called to Nairobi to collect the explosives for use in Uganda, <strong>A7</strong> was the one who opened the gate to the house at South B; where explosives were loaded into the motor vehicle of <strong>A10</strong>.</p> <p>Police officer Onen can Clix (PW5)recorded a charge and caution statement from <strong>A7</strong>on the 13th September 2010; but which however he repudiated,stating that he was forced to sign it after he had been subjected to physical and mental torture. I admitted it in evidence as a statement, which <strong>A7 </strong>had in fact voluntarily made. The reasons for my doing so, include that the medical examination carried out on <strong>A7</strong>by a doctor did not reveal any injuries or evidence of physical torture on him. Second, Police officer Onencan Clix was in fact not based at the place where <strong>A7</strong>was being detained and claims he was tortured from; but was instead detailed from the CID Headquarters to record <strong>A7</strong>'s cautioned statement. Third, the statement he (<strong>A7</strong>) made to PW5 is in fact not entirely a confession; as at the end he denies any guilt.</p> <p>In <strong><em>Usin &amp; Anor vs Republic [1973] E.A. 467</em>,</strong> in convicting the appellant, the trial judge relied on an unsworn but exculpatory statement made by the appellant's co–accused in his defence. The appellate Court pointed out that these were grave misdirection; and held, at p. 468, that: –</p> <p><em>"... an unsworn statement by a co–accused is not evidence against another accused (<strong>Patrisi Ozia vs R. [1957] E.A. 36</strong>), nor does it amount to accomplice evidence capable of acceptance after corroboration (<strong>Ezera Kyabanamaizi vs R. [1962] E.A. 309</strong>). Furthermore, the second appellant's unsworn statement was entirely exculpatory, and could not be taken into consideration against the first appellant s. 28 of the Evidence Act, which applies only to confessions."</em></p> <p>In <strong><em>Kantar Singh Bharaj &amp; Anor vs Reginam (1953) 20 EACA 134</em></strong>, there were only two unimportant discrepancies between the witness' statement and his evidence in Court. After laying down the procedure trial Courts should follow in such a situation to admit the statement, the Court of Appeal pointed out as follows:–</p> <p><em>"But that does not make what is said in the statement substantive evidence at the trial. Its only purpose and value is to show that on a previous occasion, the witness has said something different from what he has said in evidence at the trial, which fact may lead the Court to feel that his evidence at the trial is unworthy of belief."</em></p> <p>In the instant case before me, it makesno sense for the police tofabricate a statement for useto pin a suspectin the crime charged; and yet,includein the statementmaterial which in effect exculpates the suspectit is otherwise designed to crucify, by insteadsuggestingsuch a person's innocence. I therefore reject that part of the statement where <strong>A7</strong>seeks to exculpate himself; and accept the rest of the statement where he actually incriminates himself and implicates others with regard to their exploits in Somalia, and of participation in themission to attackUganda.</p> <p>In his cautioned statement, <strong>A7</strong>confessed that he joined Al–Shabaab in Somalia in 2006 on the persuasion of one Hanif.He received military training in Somalia with <strong>A11</strong>.He went back (to Kenya) leaving <strong>A11</strong> in Somalia; but he returned to Somalia in 2009, where he rejoined <strong>A11</strong>. They fought several battles together there. He left Somalia and came back to Kenya; and in January 2010, he saw <strong>A11</strong> at a mosque in Mombasa. In April/May 2010, <strong>A11</strong>and one Jabir informed him that they wanted to hire his brother's (<strong>A10</strong>'s) Toyota Land Cruiser. He called his brother <strong>A10</strong> to bring the vehicle; which <strong>A10 </strong>did, and they met at Dagoreti, Kawangware. <strong>A11 </strong>and Jabir brought PW1 whom they introduced as their client; and then Jabir brought four green bags and loaded them in the boot of <strong>A10</strong>'s vehicle, with instructions that no one should tamper with them.</p> <p>The following day, on a Sunday, <strong>A11</strong>and Jabir came with PW1; and then PW1 and <strong>A10</strong>left for Kampala. Later <strong>A10</strong>called and informed him of the arrest of PW1; and requested him to call <strong>A11</strong> to give the contact of another person in Kampala to receive the bags. He called <strong>A11</strong>who came with <strong>A1</strong>to him in Nairobi; and he gave them the tel. No. of <strong>A10</strong>, then he left for Mombasa. Police officers Sgt. Christopher Oguso (PW59) and ACP Robert Mayala (PW71) testified thatAmina Shamsi told them during investigations that tel. No. 254771666668 belonged to <strong>A7</strong>; whom she was advised by her husband (<strong>A11</strong>) to refer to in case of any problem. She told them that it was her husband (<strong>A11) </strong>who informed her that tel. No. 254771666668 belonged to <strong>A7</strong>.</p> <p>The call data records (CDRs) for<strong>A10</strong>'s tel. No. +255786065651, and tel. No.+256785268359 show that <strong>A7</strong>, using tel. No. +254771666668, was in constantcommunication with <strong>A10</strong>’s +255786065651 and +256785268359 between the 8thMay to 10th May,2010.The CDRs for tel. No. 255786065651 and tel. No.256785268359 also show that tel. No. 2540713286523(registered in the name of <strong>A7</strong>) communicated with tel. No. 25471159619 (registered in the name of one Hawa Musa) five times, by SMS, between 29th May 2010 and 18th July 2010 when it went off air.Police officer SP Simon Murage (PW49) testified that he made a search at<strong>A7</strong>’s apartment in Mombasa; and recovered <strong>A11</strong>’s documents, which included a photocopy of <strong>A11</strong>’s national identity card and others (<em>exhibits PE346, PE347,</em> and <em>PE348</em>) from there.</p> <p>In his unsworn statement, in his defenceasDW7,<strong>A7 </strong>admitted that <strong>A6 </strong>and <strong>A10</strong>are his brothers. He denied that he was a preacher; but was instead a radio presenter in Mombasa. He denied that he has been Somalia; and noted that PW1 did not mention him in his extra judicial statement as being one of those chosen for the Uganda mission. He also contended that there is no evidence that tel. No. 2540713286523washis; or that he owned tel. No. +254771666668 (<em>exhibit PE143</em>), which is shown to have called <strong>A10</strong> even after 9th October 2010 when hehad already been arrested. He also denied ever going to Kawangware; and contended that there is noinventory for <strong>A11</strong>'s properties allegedly recovered from his home. He contended that there was no proof of PW1's evidence that he transported the bombs to Kenya from Somalia; as <strong>A3</strong>'s extrajudicial statement does not state so.</p> <p>With regard to PW1 not having mentioned<strong>A7</strong> in his extrajudicial statement, I note that PW1 does not state in it that the persons he named therein were the only ones with him in Somalia; or that he specifically stated that <strong>A7</strong> was not there. For instance, he testified in Court that eight persons were assigned to carry out the Uganda mission; but he names only five of them, including <strong>A7</strong>; and also stated that he would only remember some of the persons he was with in Somalia upon seeing them. To my mind then, failureon the part of PW1 to name <strong>A7</strong> in his extrajudicial statement does not render his evidence in Courtunreliable or unworthy of belief. It is my finding that the extrajudicial statement is, in fact, not inconsistent with his sworn evidence; which merely gives a more detailed account.</p> <p>Learned defence Counsel pointed out that<strong>A7</strong>and <strong>A10</strong> are brothers; hence, even if it is true that in factusing tel.No. +254771666668 communicated with <strong>A10</strong>on<strong>A10</strong>'s tel. Nos. +255786065651 and +2567885268359, there would be no crime in this. I however think otherwise. To me, the communication between the two accused persons should not be explained simply bytheir blood relationship. It should, instead, be considered inthe light of the evidence that<strong>A7</strong> had to call his brother (<strong>A10</strong>) to come all the way from Arusha, Tanzania,and ferry some items from Nairobi to Kampala; instead of identifying a person from Nairobi where the items were, or from Mombasa where he (<strong>A7</strong>) was resident, to do so. Thiscould only have been because the mission was one of great secrecy; and so, demanded utmost trust and confidence. This, as has been shown by evidence,was the highly secretive transportation of explosives for a criminal purpose.</p> <p>I should point out that it is manifest that thetelephone communications took place at the very timeit is shown that<strong>A10</strong>travelled to Uganda, allegedlyfor the solepurposeof delivering the explosives that were to be used in the Kampala bombings. These telephone communications should also beconsidered in the light of the evidence adduced, that it was <strong>A7</strong> who notified<strong>A11 </strong>of the hitch in the plan to deliver the explosives to Kampala, caused by the arrest of PW1 at Malaba; which necessitated the identification of another person in Kampala to receive the explosives. Accordingly, the communication between <strong>A7</strong> and <strong>A10</strong> at the material time was certainly neither ordinary nor innocent. It is my finding that it was part, and parcel, of the criminal enterprise of delivering the explosives intended for the planned attack on Uganda.</p> <p>The cautioned statement made by <strong>A7</strong>,in which he incriminates himselfof participating in the Kampala bombings, supplements and lends assurance to a whole range of evidence adduced to prove his participation. Such evidence includes the accomplice evidence of PW1, the fact of the crossing into Uganda by <strong>A10</strong>, and the delivery of the explosives to <strong>A3</strong> in Kampala. It also includes the evidence regarding the recovery of<strong>A11</strong>'s documents from <strong>A7</strong>'s house in Mombasa; showing that<strong>A7</strong> closely knew <strong>A11</strong>, with whom he was deeply involved in the execution of the Kampala bombing mission.I am, therefore, satisfied that the prosecution has presented overwhelming evidence proving beyond reasonable doubt that<strong>A7</strong>was deeply involved in the execution of the plan to explode bombs in Kampala; for which I find him guilty as charged; and accordinglyconvict him.</p> <p><strong>(vi) Participation of Hassan Haruna Luyima(A4) </strong></p> <p>PW2testified that <strong>A3</strong> recruited him (PW2) and <strong>A4</strong> into the scheme to explode bombs in Kampala; and gave both of them keys to his (<strong>A3</strong>'s) Namasuba safe house.<strong>A3</strong> gave <strong>A4</strong>money with which <strong>A4</strong>purchased a Nokia 3510 and a Kabiriti phone, from Kafero Plaza in Kampala; then <strong>A4</strong>, took him (PW2) to the Namasuba safe house where he (<strong>A4</strong>) introduced him to the suicide bombers in the house as a brother. After they had conducted their separate surveillance, <strong>A4</strong> berated PW2 for returning to the Namasuba house late; as he had missed the connections of the explosives. A demonstration was done for PW2, following which<strong>A4</strong> encouraged him not to fear detonating the explosives using a phone; as all that he needed to do was to make a phone call. <strong>A4</strong>alsocautioned him to avoid being arrested; and advised him to blow himself up if he was faced with an arrest. </p> <p>He testified further that after the connections of the explosives, <strong>A4 </strong>left with one of the suicide bombers to take to the Ethiopian Village Restaurant, and for <strong>A4</strong>to proceed to the Makindye house; while PW2 left with the other suicide bomber for the Kyadondo Rugby Club. The day after the blasts <strong>A4</strong> comforted him over the blasts; and informed him that however, he had learnt that the Makindye House bomb had not detonated. <strong>A4 </strong>told him that he feared he (<strong>A4</strong>) could be arrested; so he had booked a bus to go to South Sudan. Later, <strong>A4</strong> called him from South Sudan complaining of living conditions there; so he was preparing to come back to Uganda. He testified further that <strong>A4</strong> was with the police who arrested him from his Najjanankumbi home in the evening of his arrest; and identified him to the police.</p> <p>In <strong>A3</strong>’sextra judicial statement (<em>exhibit PE94</em>),he confessed that he recruited his brother <strong>A4</strong>in the execution of the Kampala mission;and assigned him to take Kakasule, the suicide bomber, to Ethiopian Village Restaurant, and to deliver explosives at Makindye House.He gave <strong>A4</strong>thekeys for the Namasuba house where the final wiring of the explosives were done from; and gave him final instructions before he<strong>A3</strong> left for Nairobi.<strong>A4</strong>made an extra judicial statement (exhibit PE95),to Her Worship Agnes Nabafu (PW4) from Nakawa Chief Magistrate's Court, which he retracted; butI admitted in evidence for reasons I have already given in the course of dealing with <strong>A3</strong>'s participation.<strong>A4</strong>'s statement is consistent with that of <strong>A3 </strong>and the evidence of PW2regarding his (<strong>A4</strong>'s) role in the Kampala bombings.</p> <p>In his unsworn statement made in his defence, as DW11,<strong> A4 generally</strong> denied most of the evidence adduced by the prosecution against him. He attacked PW2's evidence against him as weak accomplice evidence. He retracted his confession; and attacked the document showing his mobile phone sets purchase from Majestic Plaza; pointing out that it shows a hire purchase transaction instead of it beinga receipt for payment made for the phones. He contended that at the time he allegedly bought the phones, he was also dealing in the sale of phones; so there was no need for him to buy phones from another person. He however admitted that he travelled to South Sudan after blasts; but contended that this was a routine business trip to Juba.He also admitted that he was arrestedfroma shop in the Pioneer Mall.</p> <p>As was the case with the retracted confession by <strong>A3</strong>, I have had to warn both the assessors and myself of the danger of acting on the uncorroborated confession by <strong>A4</strong>. I am however aware that upon exercising the necessary caution, I can nonetheless act on the confession, even without corroboration, if I am satisfied that the confession can only be the truth. I find that <strong>A4</strong>'s confession supplements, and lends assurance to, an array of evidence, which the prosecution has adduced against him. Such evidence includes that of Joseph Makubuya (PW19) that he sold two phones (a Nokia and a Kabiriti) to <strong>A4</strong>from Majestic Plaza on 9th July 2010. It also lends assurance to the accomplice evidence of PW2 that<strong>A4</strong>fled to South Sudan soon after the twin blasts, and after expressing fears that he might be arrested since the Makindye bomb, containing the phone he had bought from PW19, had failed to explode.</p> <p>On the other hand, I find corroboration of <strong>A4</strong>'s confession, and PW2's evidence on <strong>A4</strong>'s flight to Juba, inthe evidence of retired Police Sgt. James Owor (PW64) that from <strong>A4</strong>'s home,he recovered two bus tickets for trip to and from Juba (<em>exhibits PE290 and PE291</em>), and two temporary travel permits issued to <strong>A4 </strong>by South Sudan Government (<em>exhibits PE288</em> and <em>PE289</em>). Further evidence of his trip to South Sudan, is in the evidence ofSenior Immigration officer Daniel Ambaku Berra (PW26) that the record at Elegu border crossing point shows that <strong>A4 </strong>crossed to South Sudan on 13th July 2010; which was two days after the blasts. This is so although <strong>A4</strong>, while conceding in his defence that he travelled to South Sudan soon after the Kampala blasts, claimed that it was not an escape; but a routine business trip to Juba. I instead view this as conduct inconsistent with innocence.</p> <p>The confession by<strong>A4</strong>, and PW2's evidence,is also corroborated by the evidence adduced by PW17, PW18, PW41, PW42, and PW65, regarding the discovery of the explosive device whose components are (<em>exhibits PE256, PE258, PE260, </em>and <em>PE262</em>), and a Nokia phone (<em>exhibit PE185</em>), which had been placed at Makindye house. Further evidence, corroborative of <strong>A4</strong>'s, is in the remark from the Pioneer Mall shop No. 20by <strong>A13,</strong> to PW31 and his team, that it was <strong>A4 </strong>who knew more about the bombs. Further corroboration still, of <strong>A4</strong>'s confession and PW2's testimony, is in the fact that <strong>A4 </strong>disclosed the role PW2 performed in the crime, andled Police to the home of PW2; leading to PW2's arrest. It was also <strong>A4</strong>, who led police to <strong>A3</strong>'s safe house at Namasuba; where the suicide bombers and the explosives had been kept, and the final preparations for the Kampala bomb attacks had been made from.</p> <p>Similarly, it was also <strong>A4 </strong>who led police to the home he had rented at Namasuba;from where the police recovered a ZTE Kabiriti phone (<em>exhibit PE273</em>) with a Warid Sim card (<em>exhibit PE274</em>), and a Nokia Katosi phone cover,from a pit latrine which he had disclosed to police that he hadthrown the phones in. Therefore, it is my finding that the prosecution has adduced sufficient direct and circumstantial evidence, which proves beyond reasonable doubt that <strong>A4</strong> was involved in the execution of the mission hatched in Somalia to attack Uganda. He fully participated in the delivery of the explosive devices at the Makindye House; and the delivery of the suicide bomber and explosives at the Ethiopian Village Restaurant. Hence, I find him guilty; and convict him of the offence of terrorism as charged.</p> <p><strong>(vii) Participation of Omar Awadh Omar (A8) </strong></p> <p>Police officer SP Paul Maingo (PW61) testified that in 2009, the policegot information that Omar Awadh Omar (<strong>A8</strong>) was involved in recruiting for the Al–Shabaab, as well as financing and coordinating their activities. The police placed (<strong>A8</strong>) under surveillance; and in 2010 police got information of possible recruitment taking place at the home of <strong>A8 </strong>at Kalimani. The police carried out a search at that home; and recovered military items such as uniform, sleeping bags, and boots. The search also found <strong>A8</strong>with ten Kenyan passports bearing different names. <strong>A8</strong>was interrogated; but was, however, released.In 2010 he (PW61) interrogated <strong>A1</strong>personally, upon <strong>A1</strong>'s arrest; and <strong>A1</strong> revealed to him that the person saved in his (<strong>A1</strong>'s) phonebook as'Boss' under tel. No.254727555555, was Omar Awadh Omar; who was the financier of their operations for the Kampala attacks.</p> <p>He (PW61) received information from the U.K. that money was sent to <strong>A8</strong> from the U.K. throughQarani Forex Bureau in Eastleigh, Nairobi. PW61 andPolice officer No. 74734 Cpl. Jackson Merengo Chacha (PW67) obtained a printout of the transactions of the Forex Bureau (<em>exhibit PE174</em>) from the Manager Mohamed Mahdi. The record of the transactions shows that between 19th November 2009 and 3rd June 2010, eleven remittances, in the total sum ofUS$35,990, was made by one Omar Aziz Omar of the U.K. to Musa Ali of tel. No.254727555555 as recipient. Ten of the eleven remittanceswere collected by one Musa Dere, a wanted Al–Shabaab member, who the Manager of the Forex Bureau told (PW67), had been introduced to him by <strong>A8</strong>to collect them.</p> <p>The Manager of the Forex Bureau told PW67 thatMohamed Hamid Suleiman (<strong>A9</strong>), whose tel. No. 07222236664 was captured in the record of the Forex Bureau transactions, collected the other remittance in the sum of US$660.A search at Safaricom established that tel. No. 254727555555 was registered in the name of Omar Omar; and its CDR (<em>exhibit PE142</em>)shows that calls were made from it to a number of U.K. telephone contacts every time the remittances in issue were sent to Qarani Forex Bureau; beginning with the call to U.K. tel. No. +447908239425 made on the 19th November 2009.Prosecution <em>exhibit PE326</em> shows that tel. No. 254727555555 was roaming in Uganda on the MTN network between 7th May 2010 and 22nd June 2010.</p> <p>Police officer ACP Aguma Joel (PW66) testified that heintercepted and arrested <strong>A8</strong> at Malaba on 18th September 2010; andfound<strong>A8</strong>with three phones, tendered in evidence as exhibits <em>PE281, PE282,</em> and <em>PE283</em>.TheCDR of tel. No. 254727555555 (<em>exhibit PE142</em>) shows that the Nokia 1208 phone with IMEI (Serial No.) 356028036441427 (<em>PE281</em>), which was recovered from <strong>A8</strong> by PW66, had used the Sim for tel. No.254727555555 from 17th November 2009 up to 1st September 2010. Nokia 6233 phonewith IMEI (Serial No.) 352749014839340 (<em>exhibit PE282</em>) which was also recovered from <strong>A8</strong> by PW66, had also usedthe Sim for tel. No.254727555555 on 7th March 2009.</p> <p><strong>A8</strong> gave an unsworn statement in his defence as DW8; in which he admitted close association with <strong>A9</strong>, whom he once lived with, in the same estate, and communicated with regularly; but denied that he sent him to Qaran Forex Bureau. He also admitted that he came to Uganda just before the Kampala bomb attacks. He however denied that tel. No.254727555555 was his; and instead gave his tel. No. as 254722516950. He also pointed out thatPW2 never mentioned having seen him (<strong>A8</strong>) in Uganda. He claimed that he is on trial because his organization 'Muslims' Human Rights Forum'had released a document exposing abuse of rights by the Kenyan government, in conjunction with foreign government agencies like the FBI. He had researched and handed over materials to one Alamin, the Director, who signed it.</p> <p>He stated that he was arrested from Nairobi; and was hooded, handcuffed, and shackled, then driven to Malaba and handed over to Ugandan police. <strong>A8</strong>'s denial of ownership of tel. No.254727555555,was supported by <strong>A9</strong> who informed Court in his unsworn statement in his defence, that tel. No.254727555555 belongs to another person called Omar Omar Salim. However, the recovery of phones upon his arrest at Malaba, showing that they had used Sim for tel. No. 254727555555, corroborates the informationgiven to police by the Manager of Qarani Forex Bureau that this was <strong>A8</strong>'s telephone contact. Amina Shamsi's information to PW59 that it was<strong>A8</strong> who collected the key to their house from Kitangela when her husband (<strong>A11</strong>) had left for Tanzania, was supported by <strong>A6</strong>'s information to PW59 that it was <strong>A8</strong>who gave him the key to evacuate <strong>A11</strong>'s house at Kawangware.</p> <p>It wasfollowing this information, thatthe police recovered a cheque and a covering letter in the name of <strong>A11</strong>from <strong>A6</strong>'s home.This shows not only that Amina Shamsi is a reliable informant; but alsothat<strong>A6</strong>and <strong>A11</strong>were close to, and confided in, one another.I believe the information MohamedMahdi (the Manager for Qarani Forex Bureau), who could not be produced in Courtbecause he has vanished, and his Forex Bureau closed, gave the police that he disbursed the remittances to Musa Dere, andMohamed Hamid Suleiman on the instructions of <strong>A8</strong>. It was submitted for the defence that tel. No.254727555555 was registered in the name of Omar Omar; which is not the same as Omar Awadh Omar.</p> <p>I should however point out that tel. No. 254722366634 (<em>exhibit PE143</em>), which belongs to Mohamed Hamid Suleiman (<strong>A9</strong>), was instead registered in the name of Moahmed Hamid; leaving out the name Suleiman. Thisincomplete registration of <strong>A9</strong>'s name as user of this tel. No. makes it probable that the service providers may not have been that strict in recording the names of their registered users. Second,if I wereto believe <strong>A9</strong> that tel. No. 254727555555 belonged to a Mombasa businessmancalledOmar Omar Salim, then since this name is not the same as Omar Omar (the registered owner oftel. No. 254727555555), the same contention, which has been raised with regard to<strong>A8 </strong>beingthe registered user ofthat tel. No., would equally arise.</p> <p>This would then, and in the light of the evidence that it was <strong>A8</strong> who was authorizing the manager of Qarani Forex Bureau, through tel. No. 254727555555, to disburse funds to particular persons, present a very high probabilitythat the person registered as user of tel. No.254727555555 was in fact <strong>A8</strong>; notwithstanding that he was not registered by his full name.Even then, this offered nothing more than circumstantial evidence; and since, on this, the prosecution case is grounded exclusively on circumstantial evidence, before any conviction can be justified, there is need to narrowly examine the evidence and establish whether the inculpatory facts are incompatible with the innocence of the Accused (<strong>A8</strong>), and are incapable of explanation upon any reasonable hypothesis other than that of guilt.</p> <p>Further, there must be no co–existing circumstances that would weaken or altogether destroy the inference of guilt. I however have difficulty with the prosecution's evidence regarding <strong>A8</strong>'s alleged participation in recruiting for the Al–Shabaab. I find it most surprising and utterly inexplicable, and it defies all logic, that a person who is a known point man for the Al–Shabaab,as the prosecution claims<strong>A8</strong>was, is found red handed with military materials, and in questionable possession of a number of passports; but is not brought to book.There is the real possibility that indeed <strong>A8</strong> was still a linkman for the Al–Shabaab; and so, the money remitted to him and collected by Musa Dere, a known Al–Shabaab operative who was reportedly killed in Somalia, could possibly have been meant for operations in Somalia.</p> <p><strong>A8</strong>'s shadowy operation could have been out of fear of arrest again by the Kenyan police.This to me is a reasonable hypothesis that could explain his clandestine activities. However, there is the strong possibility that in all this, he had nothing to do with the Kampala bombings; and this would explain why neither <strong>A3</strong>nor <strong>A4 </strong>in their extrajudicial confessions, nor PW1 or PW2 who testified that a group of visitors came to Uganda for surveillance and coordination of the mission, named him amongst them. In fact, none of the prosecution witnesses named him as having attended any of the meetings for the planning or execution of the Kampala attacks. True, he was aware that <strong>A11 </strong>was leaving Kenya for Tanzania; and executed the evacuation of <strong>A11</strong>'s house.</p> <p>But there is no evidence that he was aware that <strong>A11 </strong>was guilty of participating in the Kampala blasts; or that he urged or assisted <strong>A11</strong>to flee to Tanzania. In any case, he is not being charged with the offence of being an accessory after the fact.He has given an explanation for his having come to Uganda; that he was born and partly raised in Uganda, and his mothera Ugandan lives here. It is quite plausible that indeed, as he claims, he came to Uganda to visit his family members and to arrange for his relocation to Uganda from Kenya.It is noteworthy that neither does PW2, in his evidence, nor do <strong>A3</strong> and <strong>A4 </strong>in their confession statements, mention <strong>A8</strong> as having played any role at all in executing the bomb blasts in Kampala.</p> <p>I agree that the prosecution has produced a fairly strong case against <strong>A8</strong>, which casts serious suspicion on him; but to my mind, that is not sufficient to prove beyond reasonable doubt that he participated in the execution of the Kampala mission.Because I find it quite instructivewith regard to determining whether prosecution has adduced evidence which proves beyond reasonable doubt that <strong>A8</strong> is guilty, I must again refer to the case of <strong><em>Omari s/o Hassani v. Reginam </em></strong>(supra)<strong>, </strong>wherethe trial Judge made a finding that the prosecution had<em>‘raised a fairly strong case against the accused'</em>; and had drawn an adverse inference of guilt, from the accused person's refusal to testify on oath, and convicted him. The Court of Appeal quashed the conviction; and made quite a strong statement, at p. 581, that:–</p> <p><em>“... a ‘fairly strong’ case is not in ordinary language the same as a case proved beyond reasonable doubt. ... A Judge is, of course, entitled to take into account an accused person’s refusal to give evidence on oath, but not to use such refusal to bolster up a weak case or to relieve the prosecution from proving its case beyond reasonable doubt. Nor can such a refusal amount of itself to corroboration of evidence which requires to be corroborated”</em></p> <p>I can only, here, repeat the words of the Supreme Court of Uganda in the case of <strong><em>Kazibwe Kassim vs Uganda, S. C. Crim. Appeal No. 1 of 2003; [2005] 1 U.L.S.R. 1</em></strong>at p.5;where the Court stated that:-</p> <p><em>“In the instant case, like the case of <strong>R. vs. Israeli – Epuku s/o Achietu (1934)1 E.A.C.A. 166, </strong>we are of the opinion that the evidence did not reach the standard of proof requisite for cases based entirely on circumstantial evidence. We are unable to hold that the evidence contains any facts which, taken alone amounts to proof of guilt… Although there was suspicion, there was no prosecution evidence on record from which the Court could draw an inference that the accused caused the death of the deceased to justify the verdict of manslaughter.”</em></p> <p>In the light of the authority of the case cited above, I am not satisfied that the prosecution has adduced the requisite evidence to prove beyond reasonable doubt that indeed <strong>A8</strong> participated in any way in the planning or execution of the Kampala bomb blasts. I therefore acquit him of the offence of terrorism for which he has been charged.</p> <p><strong>(viii) Participation of Mohamed Hamid Suleiman (A9) </strong></p> <p>The CDR for tel. No. 254722366634 (<em>exhibit PE143</em>), shows that it is registered in the name of Mohamed Hamid (<strong>A9</strong>). The printout of the transactions at Qaran Forex Bureau (<em>exhibit PE174</em>) shows that <strong>A9</strong>collected money from the Forex Bureau once; on behalf of the user of tel. No.254727555555. The CDR for <strong>A9</strong>'s tel. No. 254722366634 shows that it communicated with tel. No. 254727555555, one hundred and seventy two times from the year 2009. The CDR also shows that it communicated twelve times with tel. No. 254720945298 (for <strong>A2</strong>); and twenty four times with tel. No. 254713286523 (for <strong>A7</strong>). It communicated eight hundred and sixty seven times with tel. No. +254722516950 (which <strong>A8</strong> admits is his); and also communicated six times, with a U.K. tel. No. +447939067121. It also communicated three times with tel. No. 254715855449 (registered in <strong>A1</strong>’s name). Most of the communication was by SMS mode of communication.</p> <p>In his unsworn statement in his defence asDW5, <strong>A9</strong>admitted ownership of tel. No. +254722366634. He stated that <strong>A8 w</strong>as his colleague in the organisation known as Muslims' Human Rights Forum, and they had aclose relationship. He also stated he knew<strong>A2</strong>as a driver in the school, which his children attended; and <strong>A11</strong>as a security officer at the Saudi Embassy. He however denied knowing <strong>A1</strong> and <strong>A7</strong>. He claimed that tel. No. 254727555555 did not belong to Omar Awadh Omar; but to one Omar Omar Salim, a Mombasa businessman.He contended that nobody, not even PW1, named him as having been involved in the mission to attack Uganda. He also claimed that he had not known<strong>A6</strong>before their arrest; and pointed out thathis CDR does not show anywhere that he communicated with <strong>A6</strong>.</p> <p>I agree with the prosecution that <strong>A9</strong> is merely denying having had knowledge of<strong>A1</strong> and <strong>A7</strong>, before their arrest. The evidence from the CDR of his tel. No. shows that he communicated with them numerous times; using the SMS mode of communication, which it has been shown was the mode the Accused persons I have found guilty of the crime of terrorism had adopted. I also agree with the prosecution that <strong>A9</strong> lied when he stated that tel. No.254727555555 belonged to a Mombasa business man; and yet it was recovered from <strong>A8</strong> in addition to other evidence I have discussed above, pointing to <strong>A8</strong>as the user of that tel. No.The prosecution has also urged me to consider the resistance by <strong>A9</strong> during arrest as conduct inconsistent with innocence.</p> <p>I have given the evidence adduced and the prosecution submission considerable thought. I agree that lies by an accused may corroborate the prosecution case in that it would point towards his or her guilt. However, such lies can only be useful when it is made by an accused against the backdrop of a strong prosecution case against him or her. In the case of <strong><em>Gas Ibrahim v. Rex (1946) E.A.C.A. 104</em></strong>, the appellant had offered evidence in defence, which the trial judge had characterized as ‘nonsensical’; and had convicted him. In quashing the conviction, the Court of appeal, stated at p. 106 as follows:–</p> <p><em>“It is our view that where the prosecution case failed on its merits owing to the lack of the corroboration which the learned Judge found was necessary, that lack of corroboration cannot be remedied by the mere fact that the appellant put up a false and perjured defence. If an accused person in giving evidence in his defence commits perjury he can be punished for that offence. But his perjury cannot be prayed in aid to secure a conviction for murder where the evidence for the prosecution does not justify that conviction.”</em></p> <p>With regard to the instant case before me, the burden of establishing the guilt of <strong>A9</strong>, as charged, needless to say, lay squarely on the prosecution. This, I must admit,was quite a heavy burden, as it had to be, in view of the gravity of the offence with which <strong>A9</strong> has been indicted; and has stood trial.The burden cannot be taken to have been discharged by the mere fact that this Court has found <strong>A9 </strong>to have been unreliable, or even that he indulgedindeliberatefalsehood. Theprosecution has, I am afraid, failed to discharge this burden in a manner required by law; namely by adducing evidence proving beyond reasonable doubt that <strong>A9</strong>is guilty of participating in the Kampala bombings. Accordingly then, I acquit himof the offence of terrorism; with which he has been charged.</p> <p><strong>(ix) Participation of Mohamed Ali Mohamed (A11) </strong></p> <p>It wasPW1'stestimony that he was in Somalia together with <strong>A11</strong> who was known from there as Julabaid; and was one of his instructors at the Al Shabaab camp in Kismayu. They fought many battles together alongside the Al Shabaab. He (PW1) and <strong>A11</strong>were among the persons chosen to carry out the plan hatched in Somalia toattack Uganda; and were both present at the planning in Somalia for the attack. They were given a special training for the mission. He (PW1) left Somalia with <strong>A11</strong>, <strong>A3</strong>, Omar, and Jaberi; and they had explosives for the Kampala mission. At Mandera border, Jaberi handed over the bag containing the explosives to<strong>A11</strong> who crossed into Kenya with the explosives. <strong>A11</strong>then instructed him (PW1) to go and rent a house in Kampala; which both of them would live in for the execution of the mission.</p> <p>Later, Jaberi called him (PW1) to Nairobi; where he (PW1), Jaberi, Amal, and <strong>A11 </strong>planned together how to smuggle the explosives into Uganda. They proceeded to Kawangware, to a house at South B, where they met <strong>A7</strong> and <strong>A10</strong>. In his cautioned statement, recorded by PW5, <strong>A7</strong>discloses that he (<strong>A7)</strong> he went to Somalia with <strong>A11</strong>, in 2006; where they received military training together. He came back to Kenya; leaving<strong> A11</strong>behind in Somalia. In April or May 2010, <strong>A11</strong> and Jaberi contacted him (<strong>A7</strong>) that they wanted to hire his brother's (<strong>A10</strong>'s) Toyota Land Cruiser. He called his brother <strong>A10</strong> who came with the vehicle; and he (<strong>A7</strong>), <strong>A11</strong>, Jaberi, and PW1 (who was brought by <strong>A11 </strong>and Jabir, and was introduced as their client), met <strong>A10</strong> at Dagoreti, Kawangware.</p> <p>From there, Jaberi put four plastic bags in the boot of <strong>A10</strong>'s Land Cruiser; with the directive that no one should tamper with the bags. The following day, which was a Sunday, <strong>A11 </strong>and Jabir brought PW1 very early in the morning; and then PW1 together with <strong>A10</strong>, left for Kampala. Later, <strong>A10</strong> called him (<strong>A7</strong>) and informed him aboutthe arrest of PW1 at the border; and requested him to call<strong>A11</strong>to give him the contact of another person in Kampala who could receive the bags. He (<strong>A7</strong>)called <strong>A11</strong>and met himin Nairobi; and upon briefing him of what had happened to PW1, he (<strong>A11</strong>)asked him to call <strong>A1</strong>; which he did, and <strong>A1</strong>joined them. After a brief discussion between <strong>A1</strong>and Jaberi, which he (<strong>A7</strong>) however did not follow, they asked him for the contact of <strong>A10</strong>; which he gave them, and then he left for Mombasa.</p> <p>PW44, PW45, PW47, PW49, and PW73, testified that <strong>A11</strong>had rented a house in Kaigokem Apartments; but left within 2 weeks before the tenancy period had expired. He left his properties in the house; and sent <strong>A6</strong>to clear the house and collect the rent refund.Police officer (PW47) checked three apartments in Nairobi which <strong>A11</strong>had rentedin Kawangare and Joy Park; but found that <strong>A11</strong> had vacated all of them. Police officer PW73 arrested Amina Shamsi, wife of <strong>A11</strong>; who led him to the houses <strong>A11</strong> had rented in Nairobi and Mombasa, but he found that <strong>A11 </strong>had vacated all of them. A search conducted by Police officer (PW49) at the house of <strong>A7</strong> yielded some items belonging to  <strong>A11</strong>. These included utility agreements, and tenancy agreements, for rentals in Mombasa; and a photocopy of <strong>A11</strong>'s national identity card.</p> <p>Police officersPW59 and PW78testified thatupon the arrestof <strong>A1</strong>, he was the first person to inform police that <strong>A11</strong> was one of his accomplices. He (<strong>A1</strong>) gave <strong>A11</strong>'s phone contact as 254770451980; which was confirmed by Amina Shamsi (<strong>A11</strong>’s wife) as her husband's contact. She also gave them <strong>A6</strong>’s contact as 254737367444; and<strong>A6</strong>gave themtel. No.254732485079 as <strong>A11</strong>'s  contact. The CDR fortel. No. 254732485079 (<em>exhibit PE150</em>) showsthat between 4th to 12th August 2010, itwas in contact with tel. No.254737367444 only; using the SMS mode of communication only. All the calls from <strong>A11</strong>'s tel. No. 254732485079 were made from the Kitangela geo–location only.</p> <p>Police officer (PW59) traced <strong>A11</strong>up to Tanzania. He left his wife in Kenya after the Kampala bombings; and the wife did not know where he had gone, yet he was in Tanzania working for a private company. Police officer ACP Robert Mayala (PW71) arrested <strong>A11</strong> from Tanga, in Tanzania; and found that he was going by the name Ukasa Ali as shown by his Co. employee I.D. (<em>exhibit PE308</em>). However, his passport (<em>exhibit PE302</em>), Kenyan national identity card (<em>exhibit PE303</em>), and driving permit (<em>exhibit PE304</em>) all showed he was Mohamed Ali. Police officer ACP David Hiza (PW73) testified that he established from Amina Shamsi (wife to <strong>A11</strong>) that she had been in Somalia with her husband in 2009, when her husband was fighting there.</p> <p>She admitted that she had used her brother's phone, from Tanzania, to call Somalia; and that her husband, whose whereabouts she did not know, had told her from Kenya that the police were looking for him so he had to go back to Tanzania. In his unsworn statement made in his defence as DW12, <strong>A11</strong>denied the allegations made against him; contending that PW1 did not mention him at all in his extra judicial statement; nothing on his alleged Somalia role, his being chosen for Uganda mission, or his arranging for transportation of the bombs to Kampala. He pointed out that PW1 could not have feared him (in not naming himin his extrajudicial statement) since he had not yet been arrested at the time he made that statement. He also contended that, similarly, <strong>A7</strong> did not mention him in his cautioned statement.</p> <p>He admitted having rented severalapartments in Kenya, and vacating them before expiry of term. He however denied sending <strong>A6 </strong>(whom he never knew), but instead his brother Jaffery Ali Mohamed, to collect the refund of the balance of the rent from the landlord. He knew <strong>A9</strong> from Saudi Embassy; but never communicated with him. He only knew <strong>A3</strong> from Luzira prison. He knew no one in the U.K.; and never communicated with anyone there. He admitted that he was arrested from Tanzania. As with the confession statements considered herein, regarding the other accused persons, <strong>A7</strong>'s retracted confession can only supplement and give assurance to, and may corroborate, such evidence as has been adduced against <strong>A11</strong>. Such evidence includes that of PW1 about their exploits in Somalia, with <strong>A11</strong> and others.</p> <p>It also includes evidence by PW1 that he, <strong>A11</strong>, Jaberi, and Amal planned from Nairobi on how to smuggle into Uganda, the explosives to be usedin the attacks therein. It also includes PW1's evidence that he and <strong>A10</strong> left with the explosives for delivery in Kampala. It also includes the confession by <strong>A7 </strong>that he notified <strong>A11</strong> of the hitch in the plan to deliver the explosives to Kampala, owing to the arrest of PW1 at Malaba; which necessitated the identification of another person in Kampala to receive the explosives. It similarly includes the evidence by PW2 that explosives were first delivered to his home by <strong>A3</strong> and <strong>A10</strong>, and then later relocated by <strong>A3</strong> to Namasuba. It includes also the evidence that <strong>A11</strong> rented several houses in Nairobi, which he however left prematurely and under suspicious circumstances.</p> <p>It also includes the recovery of <strong>A11</strong>'s properties at the home of <strong>A7</strong> in Mombasa.It also includes the evidence that <strong>A11</strong> fled to and was arrested from Tanzania; where he was passing under an assumed name of Ukasa Ali.TheCDR for telephone No. 254732812681, which <strong>A1</strong>informed the police as belonging to<strong>A3, </strong>shows that it made a call to a Somalian tel. No. 252615624981, and to<strong>A11</strong>'stel. No. 254732812681, from the Namasuba geo–location where from the evidence <strong>A3 </strong>resided during the planning period. This, and the information <strong>A1</strong> gave police about their exploits with <strong>A11</strong> and others in Somalia, as well as the call <strong>A11</strong>'s wife made to a Somalian tel. No. from Tanzania, and her admission that she was in Somalia in 2009 with her husband (<strong>A11</strong>), is also corroborated by the retracted confession of <strong>A7</strong>, implicating <strong>A11 </strong>of participation in the Kampala bombing mission.</p> <p>I am therefore satisfied that the prosecution has, through direct and circumstantial evidence, proved beyond reasonable doubt that <strong>A11</strong> participated in the terrorism act, for which he has been charged; and so the prosecution has discharged the burden of proof that lay on it. I therefore convict him for that offence.</p> <p><strong>(x) Participation of Selemani Hijar Nyamandondo (A10) </strong></p> <p>In hiscautioned statement, <strong>A7</strong> confessedthat he called his brother (<strong>A10</strong>) from Tanzania to come over to him in Nairobi; and <strong>A10</strong>responded. He (<strong>A7</strong>) saw four green bags being loaded onto the boot of <strong>A10</strong>'s Toyota Land Cruiser, and instructions were given that they should not be tampered with.<strong>A10</strong>andPW1 then left in the Land Cruiser for Kampala; but later, <strong>A10</strong>called him (<strong>A7</strong>) seeking an alternative contact in Kampala for the delivery of the bags as PW1 had been arrested in Malaba. PW1 testified that he saw the bags being loaded into <strong>A10</strong>'s Land Cruiser from Nairobi; and later they left for Kampala, but he was arrested at Malaba, and <strong>A10</strong> proceeded alone. <strong>A3</strong>stated in his extra–judicial statement, that<strong>A10</strong>delivered the bags of explosives to him at National Theatre Kampala.PW2 testified that <strong>A3 </strong>and <strong>A10</strong> delivered bags containing explosives to his house at Najjanankumbi; and then <strong>A3</strong>booked <strong>A10 </strong>atNaigara Hotel for the night.</p> <p>The Immigration records at Namanga, Malaba, and Busia show that <strong>A10 </strong>entered and exited Uganda (8th and 10th May 2010 respectively) in Land Cruiser, which from <strong>A10</strong>'s admission was registered as T595 ADH. This is supported by the evidence of Witness 'A' (PW22) the Immigration officer of Malaba, Charles Nuwamanya (PW24) the Senior immigration officer in charge of Malaba, Rafael Muntinda (PW46) the Immigration officer of Busia but previously of Namanga, Tom Eleve (PW56) presently a Customs officer at the Jomo Kenyatta International Airport but formerly of Busia Customs point, Police officer SSP Alfred Majimbo (PW54), and Priscilla Michael Seleki (PW72) of Tanzania Revenue Authority Arusha. Further evidence of<strong>A10</strong>'s travel up to Uganda can be gathered from <em>exhibits PE132, PE163, PE122, PE101, PE131, PE301, </em>and <em>PE338</em>; and as well <strong>A10</strong>'s own admission.</p> <p>Police officersPW59 and PW73 testified that they got information from Amina Shamsi that<strong>A10</strong>’s contact was 255786065651; and this was confirmed by <strong>A10</strong>.The CDR of <strong>A10</strong>’s tel. No. 255786065651 (<em>exhibit PE155</em>) shows movement from geo–locations in Tanzania to Kampala Uganda, through Nairobi Kenya; and back to Tanzania,from 8th – 10th May 2010.<strong>A10</strong>’s tel. No. 255786065651 was in constant contact with <strong>A7</strong>'s tel. No.254771666668.The Call Data Record (CDR) for tel. No. 256785268359 (<em>exhibit PE328</em>) shows that it usedphone set with IMEI (serial No.) 356931034892 in the period when <strong>A10</strong> was in Uganda; and communicated with<strong>A10</strong>'s tel. No.254771666668 using it. This was the same phone set, which <strong>A10</strong> was usingtheTanzaniantel. No. 255786065651 in, between 8th May 2010 to 10th May 2010.</p> <p>In his defence, <strong>A10</strong>, who gave an unsworn statement as (DW10), admitted that he travelled to Uganda through Kenya between 8th May 2010 to 10th May 2010; and confirmed that he used his Land Cruiser, No.T595 ADH, which he identified as the very vehicle the prosecution attempted but failed to tender in evidence. He however contendedthat this was not the only time he hadcome to Uganda, since he had been transporting tourists all over the region, as owner of a Travel and Tour company. He however denied that he came up to Kampala in May 2010; contending, instead, that he stopped in Jinja. He denied that he travelled with PW1; and pointed out thatPW1 does not in his extra–judicial statement name him as having travelled together with from Nairobi to come to Uganda. He also pointed out that PW1 claims they travelled in April; whereas he, instead, travelled in May.</p> <p>He also pointed out that from PW1's evidence, he (PW1) did not see the items in the bags that were allegedly loaded into his (<strong>A10</strong>'s) Land Cruiser from Nairobi. He denied carrying explosivesin his vehicle when he came to Uganda in May 2010; and contended that the FBI forensic analysis supported him as itfound no trace of explosives in his motor vehicle. He also denied that he was the owner of tel. No. 255786065651 (<em>exhibit PE155</em>). However, from the fact this tel. No.and tel. No.256785268359having used the same phone handset for calling <strong>A7</strong>'s tel. No., when<strong>A10</strong> was in Uganda, the irresistible inference one is compelled to draw is that it was <strong>A10</strong> who was using both tel. Nos. This neatly links with the fact that it was <strong>A7</strong> who had summoned <strong>A10</strong> from Tanzania, to deliver the explosives to Kampala.</p> <p>The claim by <strong>A10</strong> that he terminated his journey in Jinja is negatived by evidence that the geo–locations of his calls, as is seen fromthe CDR for tel. No.256785268359 (<em>exhibit PE328</em>), included Kampala. This evidence corroborates that of PW2 that <strong>A3</strong>and <strong>A10</strong> delivered the explosives to his Najjanankumbi house. The retracted confessions by <strong>A3</strong> and <strong>A7</strong>also supplement and give assurance to the evidence that <strong>A10</strong> in fact came up to Kampala. I do not place much evidential value in the failure by the FBI to find any trace of explosives in the vehicle<strong>A10</strong>used to travel to Uganda. This is simply becausewhile the mattress, which <strong>A3</strong>used, may not have been washed from the timehe used it, the case of <strong>A10</strong>'s vehicle, which he was using for his tour business, was different. He must have, all the time, subjected it to meticulous washing and cleaningto impress and attract customers; and thiscould havetampered with any trace of explosives in it.</p> <p>Furthermore, the explosives were safely enclosed in suicide vests contained in bags, during their transportation to Kampala from Nairobi; and were kept in this state at PW2's Najjanankumbi house. They were, however, exposed at Namasuba house for wiring and connection; which musthave left traces of explosives on items there. Owing to the secrecy surrounding the mission, itobviously demanded that it be entrusted withaconfidante. I therefore have no reservation whatever that <strong>A10</strong> was not only aware of the packages he transported and deliveredto Kampala; but also of the purpose for their delivery. In the premises then, the prosecution has adduced overwhelming evidence, proving beyond any reasonable doubt, that <strong>A10</strong> participated in executing the Kampala mission; and so I convict him of the offence of terrorism as charged.</p> <p><strong>(xi) Participation of Abubakari Batemyeto (A5) </strong></p> <p>Police officer SP Martin Otieno Omumbo (PW63) testified that<strong>A3 </strong>disclosed, on arrest, that <strong>A5</strong> was his accomplice; and led PW63 to <strong>A5</strong>. PW63 recovered several phones from <strong>A5 </strong>including exhibit PE284; and a Sim card for tel. No. 254723457803, whose CDR showed it wasa Safaricom No. registered in <strong>A5</strong>’s name. This tel. No. 254723457803 roamed in Uganda between 1st May 2010 and 8th July 2010;during which time it shared a phone set having IMEI (Serial No.) 358324037568470, with <strong>A1</strong>’s tel. No. 254715855449, and <strong>A3</strong>’s tel. No.254719706497 The CDR for tel. No.254723457803 shows that it communicated to <strong>A3</strong> on <strong>A3</strong>’s tel.Nos. 254719706497 and 254700745965; mostly usingthe SMSmode of communication, which wasthe commonmode of communicationused by the Accused persons in the period leading to, and after, the Kampala bombings.</p> <p>Police officer D/AIP David Kitongo (PW29) testified that<strong>A5</strong>left Uganda through Malaba border point on 12th July 2010; which <strong>A5</strong> admits.In his defence, <strong>A5</strong> gave an unsworn statement as(DW6), in which he admitted that he was arrested from Mombasa; and that he was found with a phone upon his arrest. He admitted that tel. No. 254723457803 was his. He stated that he came to Uganda on 18th June 2010, and went back to Kenya on 12th July 2010; but that this was a routine trip, and that he came to get a maid for <strong>A3</strong>. He further pointed out that the CDR for his tel. No. 254723457803 (<em>exhibit PE140</em>) shows that he madeover sixty calls using the SMS mode of communication; but the prosecution chose only two messages out of them. He pointed out the absence ofany evidence that he communicated with <strong>A1</strong>.He however corroborated the testimony of PW31that <strong>A1</strong> has a brother called Dumba.</p> <p>While there is, indeed, evidence that <strong>A5</strong> shared a phone handset with <strong>A1</strong> and <strong>A3</strong>, when they were in Uganda, that alone is not sufficient to prove the information <strong>A3</strong> gave to PW63 that <strong>A5</strong> was his accomplice. <strong>A1</strong> and <strong>A3</strong> were people <strong>A5</strong> knew from Mombasa; and they might have requested to use his phone handset; and <strong>A5 </strong>might not have suspected anything. For a crime of the gravity, which terrorism is, I think the prosecution needed to provide more concrete evidence, direct or circumstantial, that indeed <strong>A5</strong> was a participant in the execution of the Kampala bombing mission; in order to pass the test for proof of <strong>A5</strong>'s guilt beyond any reasonable doubt. This, however, the prosecution has failed to do; and so, I have to acquit <strong>A5</strong> of the charge of terrorism with which he was charged, and has stood trial.</p> <p><strong>(xii) Participation of </strong><strong>Dr. Ismail Kalule</strong><strong> (A12) </strong></p> <p>Idris Nsubuga (PW2) testified that at end of July 2010, <strong>A3</strong>sent him to <strong>A12</strong>at Alidina mosque with a coded message inquiring about a patient; whom <strong>A12</strong> told him was PW1, who had earlier been arraigned at Nakawa Court forillegalpossession of a Ugandan passport.<strong>A12</strong>, who was happy to see him, told him that when one Issa Senkumba had been arrested, he had feared it was <strong>A3</strong>, but was happy to learn that <strong>A3</strong>was fine. <strong>A12</strong> told him that <strong>A3</strong> and PW1 operated together. He (<strong>A12</strong>) also told him that PW1 was arrested by JAT; and was detained at JAT headquarters in Kololo. He told PW2 that he had sent some Shabaab (young men) to PW1 in prison; and of his plan to get false documents to enable PW1 get bail. He also told PW2 that he would work on PW1's bail, and meet the costs as long as <strong>A3</strong> would refund him.</p> <p>Later, PW2 went back to<strong>A12</strong>who told him that PW1 had not been released because the Magistrate was on maternity leave; and that since the case was minor and not connected with the Kampala bomb explosions, he would arrange for a production warrant for PW1 the following day. After the release of PW1, he was sent by <strong>A3 </strong>with money to pay back the money <strong>A12 </strong>had used for bailing out PW1; and to pass his (<strong>A3</strong>’s) phone contact to <strong>A12</strong>. On his part, PW1 testified that he knew <strong>A12</strong> as teacher/scholar of Islam and a medical person. Before the bomb attacks in Kampala, he and <strong>A3</strong> agreed to use <strong>A12</strong>’s place as their contact point; and he was arrested from <strong>A12</strong>’s place when he had gone to thank him for bailing him out.PW31testified thathe arrested both PW1 and<strong>A12</strong> from <strong>A12</strong>'s Clinic.</p> <p>In hisunsworn statement in his defence, as DW1, in which he denied any participation in the offence of terrorism, <strong>A12</strong> went into an explanation of his complex professional attainment and occupation as a medical officer; stating that his duty is to save life. He denied any knowledge of, or dealing with, <strong>A3</strong> or PW2. He admitted dealing with PW1 from his clinic; butas an ulcers patient. He denied the allegation that he arranged for PW1's bail; andexplained that he always loaned monies to authorities of the nearby mosque, who would later refund the monies to him.I must confess that from the prosecution evidence, I am unable to discern any link between <strong>A12</strong> and the Kampala bombings. His knowledge of <strong>A3</strong>, and PW2, and his fearsfor the arrest of<strong>A3</strong>, does not make him a participant in the Kampala bombings.</p> <p>Equally, his involvement in securing bail for <strong>PW1</strong>, which I believe he did despite his denial, was withregard to the offence of being in possession of an illegal Ugandan passport; not over the charge of terrorism. Anintervention, either by providing funds or standing as surety, to secure bail for a remand prisoner is not criminal at all; as the right to apply for bail is a constitutional right. He was not privy to either the arrangement, or agreement, between <strong>A3</strong> and PW1 to meet at his Clinic; and in fact did not attend it. He can therefore not be held culpableif the meeting was for a criminal enterprise; since it washeld in his place without his knowledge or consent. In the event, I acquit him of the charge of terrorism, with which he has been indicted.</p> <p>For those of the Accused persons I have convicted, the doctrine of common intention, the authorities for which I cited earlier, applies to them. Each of them was actively involved, at different levels, and in different places, and time, in theexecution of the plan hatched in Somalia to harm Uganda for having contributed troops to the AMISOM undertaking. It does not matter that not all of them came together at any one time to confer on what to do, and how to do it. This was an enterprise whose members were far–flungall over the region. Nonetheless, they had a consensus ad idem on what they desired to do. They acted in concert, with each performing a crucial part and role in the execution of the crime; which complemented the action of, or the roles performed by, the others.</p> <p>It is clearly manifest that theyall prosecuted their criminal purpose knowingly; and with determination. It does not matter that ultimately only PW2 and the suicide bombers detonated the bombs that caused the deaths and injuries to so many. The convicts all played a part either in the planning, surveillance, delivery of the lethal explosives, or actual detonation of the explosives. They all knew that deadly attacks would be executed on Ugandan soil; and this came to pass, with the heart–rending consequence we now know resulted there from. Their seemingly separate actions were in fact joint and coordinated; and led ultimatelyto thedisastrousdeeds. They pursued the enterprise as a common purpose; which they did achieve, and for which they have stood trial, and been found guilty.</p> <p><strong>THE OFFENCE OF MURDER</strong></p> <p><strong>A1</strong> to <strong>A12</strong> were each indicted of 76 counts of murdercontrary to sections 188 and 189 of the Penal Code Act. The particulars of the offence in each count alleged that on the 11th day of July 2010, the respective Accused murdered the person named in the count. Each count named the specific place whereeach murder was committed; which was either at Kyadondo Rugby Club, or Ethipian Village Retaurant.Each Accused denied the charges; and a plea of not guilty was entered against each of them. It was submitted for the accused persons that the charges for the offence of murder should be struck off for being wrongly brought jointly with those of terrorism. I agree with the prosecution that neither the Trial on Indictments Act, nor the Antiterrorism Act, nor any other law, prohibits joinder of charges.</p> <p>To the contrary, section 23(1) of the Trial on Indictments Act provides that all offences, whether they are felonies or misdemeanors, may be charged together in the same indictment as long as the offences charged are founded on the same facts, or form, or are part of a series of offences of the same or similar character. The offences of terrorism and murder are distinct; with different elements to constitute each offence. In fact, it is a wise thing to do, to charge all the offences together; as the evidence sought to be relied upon is adduced once, and covers all the relevant charges.Second, neither murder nor terrorism is a minor cognate offence to the other. In fact, to constitute the offence of terrorism, death need not result from the terrorist act. Terrorism resulting in death is only one of the many instances where a person may be charged with the offence of terrorism.</p> <p>Although the word death is used in section 7(1) (a) of the Antiterrorism Act, this is not necessarily the same as murder. The elements needed to be established, to prove the death in the Antiterrorism Act, are based on the elements for terrorism; and only add death as a consequence of such act of terrorism. What is important here is that an act of terrorism that results in death, categorizes the gravity of the offence; and is relevant for sentencing the convicted person. Such sentence would then be put into consideration when sentencingthe same person for murder arising from the same act of terrorism.The prosecution had preferred 76 (seventy six) counts of murder, against <strong>A1 </strong>to <strong>12</strong>; but it abandoned four counts; namely counts 21, 62, 78, and 79, thereby leaving only 72 which it endeavored to prove.</p> <p>For each of the 72 counts, it was the duty of the prosecution to prove beyond reasonable doubt the following ingredients:–</p> <ol><li>Death of each of the persons.</li> <li>Unlawful causation of the death.</li> <li>Malice aforethoughtin causing the death.</li> </ol><p>     (iv)        Participation of the accusedin causing the death.</p> <p><strong>Ingredient (i):Fact of Death</strong></p> <p>The law, as was stated in <strong><em>Kimweri vs. Republic [1968] E.A. 452</em></strong>, is that proof of death may be achieved by presentation of a report of medical examination on such body; or, inter alia, by a person who physically saw the dead body. Prosecution proved the death of each of the 72 persons whose counts remained on the charge, as the defence never contested them; and they were each admitted in evidence by consent under the provisions of section 66 of the Trial on Indictments Act. These are persons named from count 4 up to count 79 (see <em>exhibits PE1</em> to <em>PE74</em>); save for counts 21, 62, 78, and 79, which the prosecution abandoned, as stated above.</p> <p><strong>Ingredient (ii): unlawfulness causation of Death.</strong></p> <p>It is a presumption of law, which has been restated in numerous cases such as <strong><em>R. vs. Gusambizi s/o Wesonga (1948) 15 E.A.C.A. 65</em></strong><em>; <strong>Uganda vs. Bosco Okello alias Anyanya, H.C. Crim. Sess. Case No. 143 of 1991 - [1992 - 1993] H.C.B. 68; </strong></em>and <strong><em>Uganda vs. Francis Gayira &amp; Anor. H.C. Crim. Sess. Case No. 470 of 1995 – [1994 - 1995] H.C.B. 16,</em></strong> that any incident of homicideis a felony; hence unlawful. However, as was stated in<strong><em> Festo Shirabu s/o Musungu vs. R. (22) E.A.C.A. 454</em></strong>, this presumption may be rebutted by the accused establishing, on a mere balance of probabilities, that the homicide iseither justifiable or excusable.</p> <p>Justifiable homicide is dictatedby duty. Such, include the execution of a lawful sentence of death, orthe termination of a patient's life–support by a family member or medical personnel (euthanasia) in a manner prescribed by law. It may also include fatality resulting from an attempt to arrest an escaping dangerous felon, when carried out in a manner not criminally careless or reckless. It is an absolute defence to any charge. Excusable homicide, on the other hand, is not owing to any evil design; but may occur under such instances as defence of self, or of a family member, or proportionate response to some offending provocation. It is dictated either by necessity, or is accidental. This reduces such homicide from murder, to a lesser offence; which, while still punishable, is only so to a lesser degree.</p> <p>From the evidence adduced by the prosecution a deliberate plan was hatched in Somalia to attack Uganda to punish her fordeploying troops in Somalia to protect the legitimate government of that country; which meant fighting the Al–Shabaab. This plan was ultimately executed by the deliberate delivery and detonation of explosives not in military encampments, but in places where ordinary members of the public were known to assemble. It is therefore quite clear that the multiple homicides, that resulted from the execution of this plan, were neither justified nor excusable.Accordingly then, in the absence of any evidence in rebuttal – and this was rightly conceded by the defence – the presumption that the multiple deaths were, all, unlawful homicides is well founded. </p> <p><strong>Ingredient (iii) – Malice aforethought</strong><strong>.</strong></p> <p>Section 191 of the Penal Code Act provides as follows:</p> <p><strong><em>“191. Malice aforethought.</em></strong></p> <p><em>Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances:</em></p> <p><em>(a)        an intention to cause the death of any person, whether that person  is the person killed or not, or </em></p> <p><em>(b)        knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused.”</em></p> <p>Unless the perpetratorof the causation of death has expressly declared his or her intention to cause death, malice aforethoughtwould remain an element of the mind; and can only be established by inference, derived fromthe conduct of the perpetrator, or the circumstances surrounding the causation of such death. This position of the law is well explained in the caseof<strong><em>H.K. Bwire vs Uganda [1965] E.A. 606</em></strong>, where Sir Udo Udoma C.J., sitting on appeal, stated at p. 609 as follows: –</p> <p><em>"I think it is a well–established principle of law that a man's intention in doing an act can seldom be capable of positive proof. Such an intention can only be implied from the overt acts of the person concerned; or to put it another way: where an intent is an essential ingredient in the commission of an offence such an intent in most cases can only be inferred as a necessary conclusion from the acts done by the person concerned. As a general rule, however, a man is taken to intend the natural and probable consequences of his own act. See <strong>R. vs Farrington (1881) R. &amp; R. 207</strong> and <strong>R. vs Harvey (1823) 2 B. &amp; C. 257</strong>."</em></p> <p>The factors from which malice maybe inferred, hasauthoritatively been laid down in the case of <strong><em>R. vs. Tubere s/o Ochen (1945) 12 E.A.C.A. 63</em></strong><em>;</em> andfollowedin such casesas <strong><em>Uganda vs. Fabian Senzah [1975]H.C.B. 136; Lutwama &amp; Others vs. Uganda, S.C. Crim. Appeal No. 38 of 1989.</em></strong></p> <p>The factorsinclude whether the weapon that was used to inflict the fatal injury waslethal or not; whether the parts of the body of the victim targeted were vulnerableor not; whether the nature of injury pointed to an intention to cause grave damage, as for instance where the injuriesare inflicted repeatedly, or not; whether the conduct of the assailant, before, during, and after the attack, points to guilt or not. In the case of <strong><em>Nanyonjo Harriet &amp; Anor. vs. Uganda, S.C.Cr.Appeal No. 24 of 2002</em></strong>, the Supreme Court reiterated the same factors stated above; and added that for a Court to infer that there was malice aforethought, death must have been a natural consequence of the act resulting in death, and the accused must be shown to have seen, or ought to have seen, it as a natural consequence of that act.</p> <p>In the instant case before me, following the decided cases cited above, there is overwhelmingevidence adduced by the prosecution, pointing at the homicides committed at the Kyadondo Rugby Club and Ethiopian Village Restaurant as having been perpetrated with malice aforethought.The perpetrators must, surely, have intended and known, or ought to have known, the natural consequence of their acts; namelythat either grievous harmwould result, or that deathwas inevitable.As was also conceded by the defence, and on the authority of <strong><em>Uganda vs. Turwomwe [1978] H.C.B. 16,</em></strong> whoever placed the explosives in the three venues did so with malicious intent.</p> <p>It matters not that from the evidence adduced, the perpetrators did not target any specific known person; or thatanother person, other than the one intended, was killed. All that is required, to establish the existence of malice aforethought, is that indeed death of a human being resulted following the intended unlawful act of killing a human being.It follows that on the principle of collective responsibility, which I have explained above, each of the accused persons, namely <strong>A1</strong>, <strong>A2</strong>, <strong>A3</strong>, <strong>A4</strong>, <strong>A7</strong>, <strong>A10</strong>, and <strong>A11</strong>, whom I have hereinabove found guilty of the offence of terrorism, is equally guilty of the offence of murder of the 72 persons, as charged,. Similarly, <strong>A5</strong>, <strong>A6</strong>, <strong>A8</strong>, <strong>A9</strong>, and <strong>A12</strong>, whom I acquitted of the offence of terrorism, are also each acquitted of the charges of murder of the 72 persons.</p> <p><strong>OFFENCE OF ATTEMPTED MURDER</strong></p> <p>Section 204(a) of the Penal Code Act, provides that any person who attempts, unlawfully, to cause the death of another person commits a felony; and is liable to imprisonment for life. Section 386(1) of the Act defines an attempt as follows: –   </p> <p><em>"When a person, intending to commit an offence, begins to put his or her intention into execution by means adapted to its fulfilment, and manifests his or her intention by some overt act, but does not fulfil his or her intention to such an extent as to commit the offence, he or she is deemed to attempt to commit the offence.  </em></p> <p><em>(2) It is immaterial–</em></p> <p><em>(a)        except so far as regards punishment, whether the offendor does        all that is necessary on his or her part for completing the             commission of the offence, or whether the complete fulfillment of his or her intention is prevented by circumstances independent of his or her will, or whether the offendor desists of           his or her own motion from the further prosecution of his or her       intention;  </em></p> <p><em>(b)        that by reason of the circumstances not known to the offender,          it is impossible in fact to commit the offence."</em></p> <p>Accordingly then, the ingredients of the offence are: –   </p> <ol><li>Intention to cause death of another person (malice aforethought)</li> <li>Manifestation of the intention by an overt act.</li> </ol><p>    (iii)    Participation of the accused.</p> <p>From the evidence I have considered above, while determining the commission of the offence of terrorism, and murder, it is quite evident that the delivery of the explosives in a place popular with revelers was intended to cause death; as it did, to many victims. Second, the several persons who received grievous injuries, including the ten named in the counts constituting this charge, were victims of that intention to unlawfully kill them. This also applies to the explosives, which were delivered at the Makindye house but, fortunately, did not explode. Accordingly then, the intention was put into action by the overt acts of <strong>A1</strong>, <strong>A2</strong>, <strong>A3</strong>, <strong>A4</strong>, <strong>A7</strong>, <strong>A10</strong>, and <strong>A11</strong>, whom I have convicted in the charges of terrorism and murder. I thereforeconvict each of them of the offence of attempting to cause the death of the respective persons named in each of the ten counts of the charge.</p> <p>Similarly, for <strong>A5</strong>, <strong>A6</strong>, <strong>A8</strong>, <strong>A9</strong>, and <strong>A12</strong>, whom I acquitted of the offence of murder, Iacquit each of them of the offence of attempted murder of the ten persons with which they have been charged.</p> <p><strong>OFFENCE OF AIDING &amp; ABETTING</strong></p> <p>Section 8 of the Antiterrorism Act provides as follows: –</p> <p><em>"Any person who aids or abets or finances or harbours, or renders support to any person, knowing or having reason to believe that the support will be applied or used for or in connection with preparation or commission or instigation of acts of terrorism, commits an offence and shall, on conviction be liable to suffer death."</em></p> <p>The ingredients of the offence are: –</p> <p>(a)        aiding, or abetting, or financing, or harbouring, or rendering             support to any person;</p> <p>(b)        knowing, or having reason to believe, that the support would be      applied inconnection with, or used for,the preparation or commission or instigation of acts of terrorism;</p> <p>(c)        the participation of the accused.</p> <p><strong>A12 </strong>has been charged alone; and with one count of the offence. However, the evidence adduced by PW1 and PW2 against <strong>A12</strong>, which I have already analyzed above, does not point at his having eitheraided, or abetted, or financed, or harbored, or rendered support to any person for the commission of the offence of terrorism or any other. The money he disbursed for bailing out PW1 was with regard to the offence of being in unlawful possession of a Ugandan passport. This is not an offence under the Antiterrorism Act. I have already pointed out, herein above, that standing surety for an Accused, or providing funds for the Accused's bail, is not an offence as it is provided for under the Constitution.</p> <p>Indeed, I am unable to see how money, which is deposited with the State,as bail money is, could be said to either aid, abet, or finance the commission of the offence of terrorism; or that in providing the funds, one would be harbouring or rendering support for the commission of the offence of terrorism or any other. For the reasons stated above, it is my finding that the prosecution has failed to prove beyond reasonable doubt, that <strong>A12 </strong>committed that offence; and so, I acquit him of it.</p> <p><strong>OFFENCE OF BEING AN ACCESSORY AFTER THE FACT</strong></p> <p><strong>A13</strong>was charged alone with two Counts of being an accessory after the fact; with the particulars stating that he received and assisted <strong>A4</strong>and PW2 in order to enable them escape punishment.Section 29 of the Antiterrorism Act provides as follows: –</p> <p><em>"Any person who becomes an accessory after the fact to an offence under this Act commits an offence and is liable, if no other punishment is provided, to imprisonment not exceeding three years or a fine not exceeding one hundred and fifty currency points; or both."</em></p> <p>Section 28 (1) of the Act defines the offence of being an accessory after the fact of an offence as follows: –</p> <p><em>"A person who receives or assists another who, to his or her knowledge, has committed an offence, in order to enable him or her to escape punishment."</em></p> <p>The ingredients of the offence are: –</p> <p>(i)         A person has committed an offence.</p> <p>(ii)        Another person has knowledge that the perpetrator has committed an offence.</p> <p>(iii)       The person with the knowledge that the perpetrator has committed an offence receives or             assists the perpetrator.</p> <p>(iv)       The person who receives, or assists, the perpetrator, does so with     theintention of enabling the perpetrator to escape punishment.</p> <p>(v)        The Accused is the person who, with the knowledge that another    person has perpetrated a crime, receives and assists the perpetrator to escape punishment.</p> <p>From the evidence of PW1 and PW2, and the retracted confession by <strong>A3</strong> and <strong>A4</strong>, as has been seen hereinabove, PW2 and <strong>A4</strong> had committed acts of terror in participating in the Kampala bombings. PW2 testified thatafter the blasts, he met <strong>A13</strong> who told him that <strong>A4 </strong>had briefed him (<strong>A13</strong>) about <strong>A4</strong>’s and PW2’s involvement in the bomb blasts; and he <strong>A13 </strong>approved of the attacks, and expressed regrets that the Makindye bomb had not exploded. He (<strong>A13</strong>) expressed the fear that police could arrest PW2 and <strong>A4</strong>; and so he advised PW2 to escape from the country.The two (<strong>A13</strong> and PW2) later discussed about the bomb blasts in <strong>A13</strong>'s car. PW31 testified that when police went to shop No. 20 at the Pioneer Mall, it was<strong>A13</strong> who identified <strong>A4</strong> as the culprit; thus leading to the arrest of <strong>A4</strong> from the shop.</p> <p>From the evidence adduced,all the ingredients of the offence of being an accessory after the fact have been established. In <strong><em>Wanja Kanyoro Mamau vs Republic [1965] E.A. 501</em></strong>, the Court stated at p. 504, that: –</p> <p><em>"We think it is quite clear that a passive attitude while a crime is being committed or following the commission of a crime will not ordinarily, of itself, make a person a principal offender, in the former case, or an accessory after the fact, in the latter. ... ... <strong>Zuberi Rashid vs R. [1957] E.A. 455</strong> ... ... ... lays down the general rule that:</em></p> <p><em>'it is not sufficient to constitute a person a principal in the second degree that he should tacitly acquiesce in the crime, or that he should fail to endeavour to prevent the crime or to apprehend the offenders, but that it is essential that there should be some participation in the act, either by actual assistance or by countenance and encouragement.'</em></p> <p><em>... ... ... It follows ... ... in our view, that while a person who aids and abets the commission of a crime or assists the guilty person to escape punishment is always an accomplice, a person who merely acquiesces in what is happening or who fails to report a crime is not normally an accomplice ...</em>"</p> <p>In the instant case before me, <strong>A13</strong>did not merely acquiesce in the bomb blasts which he knew <strong>A4</strong> and PW2 had participated in; he went further and advised PW2 to flee the country, to escape punishment. He was therefore an accomplice who aided and abetted the commission of the crime of terrorism by <strong>A4</strong> and PW2. I am, therefore, satisfied that the prosecution has proved his guilt beyond reasonable doubt; and so, I convict him as charged.</p> <p>In the result then, and for the reasons I have already given, but in partial agreement only with the lady and gentleman assessors, I find that only <strong>Hussein Hassan Agade</strong> (<strong>A1</strong>), <strong>Idris Magondu</strong> (<strong>A2</strong>), <strong>Issa Ahmed Luyima</strong> (<strong>A3</strong>), <strong>Hassan Haruna Luyima</strong> (<strong>A4</strong>), <strong>Habib Suleiman Njoroge</strong>(<strong>A7</strong>),<strong>Selemani Hijar Nyamandondo</strong> (<strong>A10</strong>), and <strong>Mohamed Ali Mohamed</strong> (<strong>A11)</strong>, are each guilty of committing the offences of terrorism, murder, and attempted murder, with which they have been indicted. I have, accordingly, convicted them for each of the counts of terrorism, murder, and attempted murder.I also find <strong>Muzafar Luyima</strong> (<strong>A13</strong>) guilty of the offence of being an accessory after the fact; and accordingly convict him.</p> <p>However,and in agreement with the lady assessor with regard to <strong>A6</strong> only, I find that <strong>Abubakari Batemyeto </strong>(<strong>A5</strong>), <strong>Yahya Suleiman Mbuthia</strong> (<strong>A6</strong>), <strong>Omar Awadh Omar</strong>(<strong>A8</strong>), <strong>Mohamed Hamid Suleiman</strong> (<strong>A9</strong>), and <strong>Dr. Ismail Kalule </strong>(<strong>A12</strong>), are each not guilty of the offences of terrorism, murder, and attempted murder, with which they have been indicted. Similarly, I find <strong>Dr. Ismail Kalule </strong>(<strong>A12</strong>), not guilty of the offence of aiding and abetting the offence of terrorism with which he was charged. Accordingly, I set each of them free forthwith; unless they are being held for some lawful purpose.</p> <p> </p> <p><strong>Alfonse Chigamoy Owiny – Dollo</strong></p> <p><strong>  JUDGE  </strong></p> <p><strong>26 – 05 – 2016<a id="_GoBack" name="_GoBack"></a></strong></p> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-558dfc3b178ad4113c4b28f059c2eea7418b1c0e32afe13b1e79e0e85089de90"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA </strong></p> <p><strong>INTERNATIONAL CRIMES DIVISION  </strong></p> <p><strong>CRIMINAL SESSION CASE No. 0001 OF 2010</strong></p> <p><strong>(Arising from Nakawa Chief Magistrate’s Court Crim. Case No. 574 of 2010)</strong></p> <p> </p> <p><strong>UGANDA ............................................................................................ PROSECUTOR</strong></p> <p> </p> <p><strong><em>VERSUS</em></strong></p> <p> </p> <p><strong>1.         HUSSEIN HASSAN AGADE            }{</strong></p> <p><strong>2.         IDRIS MAGONDU                         }{                                                                                  </strong></p> <p><strong>3.         ISSA AHMED LUYIMA                   }{</strong></p> <p><strong>4.         HASSAN HARUNA LUYIMA           }{ </strong></p> <p><strong>5.         ABUBAKARI BATEMETYO             }{</strong></p> <p><strong>6.         YAHYA SULEIMAN MBUTHIA        }{</strong></p> <p><strong>7.         HABIB SULEIMAN NJOROGE           }{ :::::::::::::::::::::::::::::::::::    ACCUSED</strong></p> <p><strong>8.         OMAR AWADH OMAR                   }{</strong></p> <p><strong>9.         MOHAMED HAMID SULEIMAN       }{</strong></p> <p><strong>10.       SELEMANI HIJAR NYAMANDONDO }{</strong></p> <p><strong>11.       MOHAMED ALI MOHAMED            }{</strong></p> <p><strong>12.       DR. ISMAIL KALULE                        }{ </strong></p> <p><strong>13.       MUZAFAR LUYIMA }{</strong></p> <p> </p> <p><strong>BEFORE:- THE HON MR. JUSTICE ALFONSE CHIGAMOY OWINY – DOLLO</strong></p> <p><strong>JUDGMENT</strong></p> <p>The 13 (thirteen persons) named herein above, who are herein after also referred to respectively as <strong>A1 </strong>to <strong>A13 </strong>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<strong>A1</strong>to<strong>A12</strong>of having committed the offence of terrorism c/s 7 (1) &amp; (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.</p> <p>The second charge, in which <strong>A1</strong>to<strong>A12</strong>have jointly been charged in one Count, is the offence ofbelonging to a terrorist organization c/s 11 (1) (a) of theAnti Terrorism Act 2002. The particulars of the chargestate that between the years 2006 and 2010, <strong>A1</strong>to<strong>A12</strong>belonged to Al–Shabaab, which is stated to be an affiliate of Al–Qaeda listed under theAnti Terrorism Act 2002as a terrorist organization. Third, <strong>A1</strong>to<strong>A12</strong>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 <strong>A1</strong>to<strong>A12</strong> 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 <strong>A1</strong>to<strong>A12</strong> are charged, took place.</p> <p>Fourth, <strong>A1 </strong>to <strong>A12 </strong>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, <strong>A13 </strong>has been charged alone, in two counts, with the offence of being an accessory after the fact c/ss 28(1) and (29) ofthe Anti Terrorism Act 2002. The particulars of the charge in the first count is that in the month of July 2010, <strong>A13</strong> received Idris Nsubuga, who to his knowledge had committed an offence of terrorism,and assisted him in order to enable him to escape.</p> <p>The particulars in the second count of the offence is otherwise the same; save that therein the person <strong>A13 </strong>is alleged to have received with the knowledge that he had committed the offence of terrorism, and assisted in order to enableto escape, is named as Hassan Haruna Luyima. Finally, <strong>A12 </strong>has been charged alone, in one Count, with the offence of aiding and abetting terrorism c/s 8 of theAnti Terrorism Act 2002.The particulars of the charge are that in various places in Uganda, <strong>A12</strong> aided and or abetted and rendered support to Al–Shabaabgroup, 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.</p> <p>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 Accusedpersons 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 necessitatedthe conduct of a full–blowntrial; which this Court carried out.</p> <p><strong>BURDEN OF PROOF</strong></p> <p>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 notshift to the Accused person; except where there is a specific statutory provision to the contrary (see <strong><em>Woolmington vs D.P.P. [1935] A.C. 462</em></strong>, and <strong><em>Okethi Okale &amp; Ors. vs Republic [1965] E.A. 555</em></strong>). 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 caseagainst 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.</p> <p>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 <strong><em>Miller vs Minister of Pensions [1947] 2 All E.R. 372</em></strong> at page 373 to page 374, Lord Denning stated quite succinctly that:–</p> <p><em>"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." </em></p> <p>In <strong><em>Andrea Obonyo &amp; Ors. V. R. [1962] E.A. 542</em></strong>, the Court stated at p. 550 as follows:</p> <p><em>"As to the standard of proof required in criminal cases <strong>DENNING, L.J.</strong> (as he then was), had this to say in <strong>Bater v. Bater [1950] 2 All E.R.</strong> 458 at 459:</em></p> <p><em>‘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.’</em></p> <p><em>That passage was approved in <strong>Hornal v. Neuberger Products Ltd. [1956] 3 All E.R. 970, </strong>and in<strong> Henry H. Ilanga v. M. Manyoka [1961] E.A. 705 (C.A.).</strong>In <strong>Hornal v. Neuberger Products Ltd.,HODSON, L.J.</strong>, cited with approval the following passage from <strong>KENNY’S OUTLINES OF CRIMINAL LAW</strong> (16th Edn.), at p. 416: </em></p> <p><em>‘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 <strong>R. v. Stoddart (1909) 2 Cr. App. Rep. 217</strong>at p. 242. </em></p> <p><em>... ... ...</em>[I]<em>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. </em></p> <p>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 reasonabledoubt; hence, the Prosecution would have conclusively discharged the burden that lay on it to prove the guilt of the Accused. In<strong><em>Obar s/o Nyarongo v. Reginam (1955) 22 E.A.C.A. 422</em>, </strong>at p. 424 the Court held that:</p> <p><em>“We think it apt here to cite a passage from the recent Privy Council case of <strong>Chan Kau v. The Queen (1952) W.L.R. 192.</strong>... At p. 194 <strong>Lord Tucker</strong> said this:</em></p> <p><em>‘Since the decision of the House of Lords in <strong>Woolmington v. Director of Public Prosecutions (1935) A.C. 462; </strong>and <strong>Mancini v. Director of Public Prosecutions 28 C.A.R. 65;</strong> 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.’”</em></p> <p>In <strong><em>Okethi Okale v. R. [1965] E.A. 555</em></strong>, the trial judge had misdirectedhimself on the onus of proof; and made remark on the defence evidence, stating that:</p> <p><em>“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’.”</em></p> <p>On appeal, the Court responded at p. 559 as follows:</p> <p><em>“We think with respect that the learned judge’s approach to the onus of proof was clearly wrong, and in <strong>Ndege Maragwa v. Republic (1965) E.A.C.A. Criminal Appeal No. 156 of 1964</strong> (unreported), where the trial judge had used similar expressions this court said:</em></p> <p><em>“… 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. </em></p> <p><em>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.)” (<strong>emphasisadded</strong>).</em></p> <p>In the two combined appeal cases of<strong><em>R. v. Sharmpal Singh s/o Pritam Singh; &amp; Sharmal Singh s/o Pritam Singh v. R. [1962] E.A. 13</em></strong>,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:</p> <p><em>“… 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 <strong>Mancini v. the Director of Public Prosecutions [1942] A.C. 1</strong>, 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.”</em></p> <p>In<strong><em>Abdu Ngobi vs Uganda, S.C.Cr. Appeal No. 10 of 1991</em></strong>, the Supreme Court expressed itself as follows; with regard to treatment of evidence:</p> <p><em>“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.”</em></p> <p>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 <strong><em>Byamungus/o Rusiliba v. Rex (1951) 18 E.A.C.A. 233</em></strong>, the Court considered the defence of alibi put up by the defence, which the trial Court had rejected as untrue, the appellate judgesdid not question it; but, with regard to the burden of proof, they said this, at p. 237:–</p> <p><em>“…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.”</em></p> <p>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. Oncircumstantial evidence, the lawis 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, isonly justifiedwhen 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 negatethe inference of guilt. </p> <p>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 considerationof the entire evidence adduced; and not a selective approach that considers pieces of evidence in isolation from the other pieces of evidencerelevant 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 factextraneous 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 valueat all in the determination of the case against the Accused person.</p> <p>In the <strong><em>Okethi Okale v. R.</em></strong> 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. 557to have stated thus: –</p> <p><em>“This is a case in which reasoning has to play a greater part than actual evidence.”</em></p> <p>On appeal, the Court responded tersely as follows: –</p> <p><em>“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 <strong>R. vs Isaac [1965] Crim. L.R. 174</strong>).”</em></p> <p>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 gruesomemurder 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 theCourt 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 wereto emerge that investigations had established that anyone, or all, of the Accused persons herein was, or were, behind that most horrendous act.</p> <p>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 convictionresults there from, it is self–evident that there wouldbe amost 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 repugnantdeed might have had on them; and instead rely strictly on the evidence adduced before this Court during the trial.</p> <p><strong>OFFENCE OFBELONGING TO A TERRORIST ORGANISATION</strong></p> <p>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 <em>'terrorist organization'</em> 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.</p> <p>Similarly, section 11 of the Anti Terrorism Act prescribes that a personwho 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:– </p> <p><em>"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"</em>.</p> <p>Section 10 (6) of the Act provides that in the section,<em>“organisation” includes any association or combination of persons."</em></p> <p>The key words in section 11 of the Act are:<em>'belonging'</em> or <em>'professing to belong'</em> to a listed terrorist organization. Therefore, tomerely <em>'profess to belong'</em> to a listed terrorist organizationwouldsuffice to have such a person charged with commission of the offence of belonging to a terrorist organization. The ingredients of the offence are:–</p> <ol><li>Existence of a terrorist organization.</li> <li>The terrorist organization must be listed in the Act.</li> <li>The Accused person must belong, or profess to belong, to a terror organizationlisted in the 2nd Schedule to the Act.</li> </ol><p> </p> <p><strong>Ingredient (i)</strong></p> <p><strong><em>(Existence of a terrorist organisation)</em></strong></p> <p>I find it preferable not to refer to the evidence of PW1, <strong>A3</strong>, and <strong>A4</strong>, on the matter; andwill accordingly restrict myself to the evidence of PW78 that Al–Shabaabhad threatened to attack Uganda; and that it claimed responsibility for the Kampala bombings. In addition tothe link between Al–Shabaaband 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 meansto achieve its cause. This isevident 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 ofterrorist organization;as is spelt out in the Anti Terrorism Act.</p> <p><strong>Ingredient (ii)</strong></p> <p><strong><em>(Organisation to be listed in the 2nd Schedule to the Act)</em></strong></p> <p>In 2010 when the Kampala bombings took place, Al–Shabaab was not among the organizations listed in the 2ndSchedule 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 Prosecutionreferred me tosome 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'<strong><em>World Terrorism: An Encyclopaedia of Political Violence from Ancient Times to Post 9/11 Era' (2nd Edn., Vol. 1– 3; Routledge, at p.444)</em></strong>, where James Cimens states that:–</p> <p><em>"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."</em></p> <p>Second, <strong><em>'Al–Shabaab in Somalia: The History and Ideology of a Militant Islamist Group; 2005 – 2012; Oxford University Press, p.45</em>'</strong>, where Stig Jarle Hansen, after an extensive and well considered analysis of the Al–Shabaabas an organization, concludes thatAl–Shabaab is an ally of Al–Qaeda. He states therein that:–</p> <p><em>"Al Shabaab is more than a product of insecurity. It is the export of Al Qaeda's ideology of Global Jihad in Somalia."</em></p> <p>Third, is the document intituled <strong><em>'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).</em></strong></p> <p>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 <em>'Al–Shabaab is an export of the Al–Qaeda ideology of Global Jihad in Somalia'</em>;<em>'Al–Shabaab has been an affiliate of Al–Qaeda since 2005'</em>;<em>'Al–Shabaab swore allegiance to Al–Qaeda's Osama bin Laden in September 2009'</em>;<em>'Al–Shabaab leadership made a formal alliance with Al–Qaeda in February 2010'</em>;<em>'Al–Shabaab is a self–declared ally of Al–Qaeda'</em>, 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.</p> <p>I must confess, I neverhad the time to read the works by these learned authors; so,I did not directly benefit fromthem. I had to rely on the quotations and submissions made by learned State Counsels. Fortunately, in their submissions on theseworks, State Counselssuccinctly 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: <em>"Al–Shabaab being an affiliate of Al–Qaeda"</em>,<em>"Al–Shabaab having sworn allegiance to Al–Qaeda"</em>, <em>"Al–Shabaab leadership having made a formal alliance with Al–Qaeda"</em> and <em>"Al–Shabaab being a self declared ally of Al–Qaeda"</em>. Thus, the key and determinant words from these phrases are <em>'affiliate'</em>, <em>'allegiance'</em>, <em>'alliance'</em> and <em>'ally'</em>.</p> <p>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:–  </p> <p><em>"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"</em>.</p> <p>It therefore follows thatfor 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 2ndSchedule to the Act, and did not pass under a name of any of the organizations listed in the said Schedule.</p> <p>The <strong><em>Oxford Dictionary of English</em></strong> (2nd Edn., O.U.P.) defines the noun <em>'affiliate'</em>, to mean: <em>'a person or organization officially attached to a larger body'</em>. It defines the noun <em>'allegiance'</em>, to mean: <em>'loyalty or commitment to a superior or to a group or cause'</em>. It defines the word <em>'alliance'</em> to mean: 'a union or association formed for mutual benefit, especially between countries or organizations'. It defines the noun <em>'ally'</em>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–Shabaabbeing<em>"an affiliate of Al Qaeda"</em>, <em>"having sworn allegiance to Al–Qaeda"</em>, <em>"made a formal alliance with Al–Qaeda"</em> and <em>"a self–declared ally of Al–Qaeda"</em>, with which the treatises cited have classifiedthe relationship between the two organizations, could be construed to mean Al–Shabaab was<em>'passing under the name'</em> of Al–Qaeda.</p> <p>In thecase of <strong><em>Noor Mohamed Jiwa v. Rex (1951)18 E.A.C.A. 155</em></strong>, Court was confronted with the task of construingwhether the word <em>‘and’</em>was the same as <em>‘or’</em> inthe enactment. The Court referred to <strong><em>Maxwell on Interpretation of Statutes 9th (1946) Edition</em></strong>, 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:–</p> <p><em>“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. </em></p> <p><em>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. </em></p> <p><em>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.”</em></p> <p>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 <em>'terrorist organization'</em> within the meaning assigned to that term by the Act.I therefore fail to see how the learned treatisescited above could qualify the Al–Shabaab as a terrorist organization within themeaning attached to the term<em>'terrorist organization'</em>by section 10 of the Act.</p> <p>I believe it is organizations such as the Al–Qaeda in Yemen, Al Qaeda in the Islamic Maghreb, or any other organizationpassing 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 realizationthat 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.</p> <p>It followsfrom the above, that the prosecution has failed to prove the charge against any of the accused, from <strong>A1</strong> to <strong>A12</strong>, 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 <em>'belongingto a terrorist organization'</em> 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.</p> <p>Theoffence of committingaterrorist act, and that of belonging to a terrorist organization,are distinct and separate from,and as well independentof, each other; and neither of them is contingent on the other.In the event, Istrike out the charge of belonging to a terrorist organization with which <strong>A1</strong> to <strong>A12</strong> have been jointly indicted.</p> <p><strong>THE OFFENCE OF TERRORISM</strong></p> <p>The ingredients,or what constitutesthe 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:–</p> <p><em>“for purposes of influencing the Government or intimidating the public or a section of the public and for a political, religious, social or economic aim, indiscriminately without due regard to the safety of others or property, carries out all or any of the following acts”</em>(<strong>emphasis added</strong>).</p> <p>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:–</p> <p>(a)        The purpose or purposes for carrying out the act or acts;</p> <p>(b)        The manner the act is, or acts are, carried out;</p> <p>(c)        The nature of the actthat is, or acts that are, carried out.</p> <p>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:–</p> <p><em>"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".</em></p> <p>This is because section 7(2) of the Act provides expressly that the offence of terrorism is committed when a person carries out<em>“all or any”</em>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:– </p> <ol><li>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;</li> <li>the intentional and unlawful attempted or actualperpetration of theact should be for the purpose of causing death, or serious bodily injury, or extensive destruction likely to or actually resulting in major economic loss;  </li> <li>the intentional and unlawful attempted or actual act is done for political, religious, social or economic aim; </li> <li>intentional and unlawful attempted or actualperpetration of theact is indiscriminate, and done without due regard to safety of others or property;</li> <li>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;  </li> </ol><p>     (vi)   the participation of the Accused persons in the attempted or                       actual perpetration of the actabove.</p> <p>Section 2 of the Antiterrorism Act, defines <em>'explosive or other lethal device' </em>to mean: –</p> <p><em>"(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</em></p> <p><em>(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."</em></p> <p>On the other hand, section 1 of the Explosives Act (Cap. 298 Laws of Uganda – Revised Edn. 2000) defines <em>'explosives'</em> 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.</p> <p><strong>THE EVIDENCE ADDUCED FOR THE OFFENCE OF TERRORISM</strong><strong>.</strong></p> <p><strong>Ingredient (i)</strong>:–</p> <p>                                    <em>'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'</em>.</p> <p>The prosecution adduced evidence that the twin explosions in Kampala and the placement of the unexploded bomb devicesin 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 ofPW1that 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 <strong>A3</strong>'sconfession, 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;wherethe explosives used in the Kampala attacksoriginated from,and were ferried through Kenya.</p> <p>PW2'stestimony was that he took custody of the explosive devices at his Najjanakumbi rented residence, deliveredsome of the devices to the Kyadondo Rugby Club grounds, and from there detonated the devices by use of a phone call. <strong>A3</strong> in his extra–judicial statement to PW3 revealed that one Hanifa did the final wiring, and connection, of the explosive devices from his (<strong>A3</strong>'s) Namasuba rented residence. PW2, in histestimony, and<strong>A3</strong>, as well as<strong>A4</strong>, revealed in their extra–judicialstatements, that they engaged in the identification of public places in Kampala best suited for the placement and detonation of the explosives devices. They identifiedthe Kyadondo Rugby Club, Ethiopian Village Restaurant, and Makindye House, as the public places that were suitable for the purpose of the Uganda mission.</p> <p>It is certainly evident that PW1 and PW2 were accomplices in the commission of the offence of terrorism; while <strong>A3</strong>and <strong>A4</strong>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 <strong>A3</strong> and <strong>A4</strong>.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 thatsuch evidence is in fact credible.</p> <p>Thevarious witnesses, who were either at Kyadondo Rugby Club or at Ethiopian Village Restaurant when the explosives went off, allattestto the fact that the explosives were placed in the midst of people who hadgathered 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–judicialstatements of <strong>A3</strong> and <strong>A4</strong>, that the explosive devices were deliberately placed in places of public use to ensure maximum impact.</p> <p><strong>Ingredient (ii)</strong>:–</p> <p><em>'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'.</em></p> <p>PW2 testified that he and<strong>A3</strong> surveyed various places in Kampala for the intended attack (e.g. Bohemia Pub Munyonyo, which however<strong>A3</strong> 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 checkbefore entry. He was not able to shift it to the place he had intended to take it; so he left the bombat the entrance, from where he detonated it by making a call from a distance as he had been instructed to do.</p> <p>Various prosecutionwitnesses such asKigundu 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 explosionsat 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.</p> <p>The Mulago Hospital pathologist (PW32), testified to having received bodies, including the head of a male person (<em>exhibit PE104</em>), and amputated limbs; andfrom 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 (<em>exhibit PE105</em>) 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 beendevastating blast injuries.D/AIP Aluma Charles (PW33) who was the mortuary attendant at Mulago Hospitalalso 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.</p> <p>The FBI Special Agent (PW35) who examined various items (<em>exhibits PE185 to PE277</em>) recovered from the Kyadondo Rugby Club, Ethiopian Village Restaurant, and Makindye House, revealed in his report (<em>exhibit PE109</em>) 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.</p> <p>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), andD/Sgt. Isaac Namwanza (PW18), who saw the explosive devicesdiscovered at the Makindye House, attested to their lethal nature.</p> <p>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 attestto 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 unexplodeddevice 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).</p> <p><strong>Ingredient (iii)</strong>:–</p> <p><em>'The intentional and unlawful attempted or actual act is done for political, religious, social or economic aim'.</em></p> <p>PW1 testified thatAl–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. <strong>A3</strong> 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 <strong>A3</strong>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.</p> <p><strong>Ingredient (iv)</strong><strong>:–</strong></p> <p><em>'Intentional and unlawful attempted or actual perpetration of the act is indiscriminate; and done without due regard to safety of others or property'.</em></p> <p>PW2 testified that <strong>A3</strong> 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 <strong>A4</strong> 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, satin 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.</p> <p>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 explosivesat 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.</p> <p><strong>Ingredient (v)</strong><strong> :–</strong></p> <p><em>'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'.   </em></p> <p>PW1'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 <strong>A3</strong> who recruited him into the mission had told him that the reason for the intended attack on Uganda was because ofthe deployment of Ugandan troops in Somalia, where they have fought against the Al–Shabaab. <strong>A3</strong> himself disclosed, in hisextra–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.</p> <p><strong>Ingredient (vi)</strong>: –</p> <p><strong><em>'Participation of each of the Accused persons'</em></strong></p> <p> </p> <p>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 providesas follows: –</p> <p><em>"(1)      When an offence is committed, each of the following persons is         deemed to have taken part in committing the offence and to be   guilty of the offence and may be charged with actually           committing it-</em></p> <p><em>            (a)        every person who actually does the act or makes the                                      omission which constitutes the offence;</em></p> <p><em>            (b)        every person who does or omits to do any act for the                                                 purpose of enabling or aiding another person to commit the                               offence;</em></p> <p><em>            (c)        every person who aids or abets another person in                                          committing the offence.</em></p> <p><em>(2)        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."</em></p> <p><strong>DOCTRINE OF COMMON INTENTION</strong></p> <p><strong><em>(Joint offenders in prosecution of common purpose)</em></strong></p> <p>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: –</p> <p><em>“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.”</em></p> <p>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.</p> <p>In the case of <strong><em>Ismael Kisegerwa &amp; Anor. vs Uganda; C.A. Crim. Appeal No. 6 of 1978</em></strong>, the Court gave an authoritative explanation on the doctrine of common intention as follows: –</p> <p><em>"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.</em></p> <p><em>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."</em></p> <p>In <strong><em>Abdi Alli v. R (1956) 23 E.A.C.A. 573</em></strong>, the Court of Appeal held at p. 575 that:</p> <p><em>"... 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."</em></p> <p><em>... ... ...</em></p> <p><em>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 </em>[of the Penal Code]<em> can be applied.”</em> </p> <p><strong>(i) Participation of Issa Ahmed Luyima (A3)</strong></p> <p>                                                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. RegardingIssa Ahmed Luyima (<strong>A3</strong>), Mamoud Mugisha (PW1) testified that he and others werein Somaliain Al–Shabaab camps with <strong>A3</strong>whom he knew thenby the nameBaseyevu. They received military training together from there; and fought battles together in Somalia. He and<strong>A3</strong>were identified by the Al–Shabaab leadership andsent together on a mission to plan attacks on Kampala, after they had been given special training for that purpose. He identified andrented a house at Nakulabye for the purpose; but <strong>A3</strong>rejected it, fearingthe security personnel guarding a government Minister who was resident nearby. Instead,<strong> A3</strong> rented another house at Para Zone Namasuba.</p> <p>                                                Idris Nsubuga (PW2), for his part, testified that<strong>A3</strong> recruited him in the schemeto carry out attacks in Kampala; and that he and <strong>A3</strong> surveyedvariouslocations in Kampala for the intended attacks. Out of these, <strong>A3 </strong>approved of Kyadondo Rugby Club. He also testified that<strong>A3</strong>phoned him to wait for, and receive, items which had been brought into Uganda from Nairobi; and later, <strong>A3</strong>and<strong>A10</strong> delivered a sealed green bag at his (PW2’s) home in Najjanankumbi. After this, <strong>A3</strong> booked a room for <strong>A10</strong>in Naigara Hotel, using the fictitious name of Moses. <strong>A3</strong>later showed him the items in the bag that he (<strong>A3</strong>) and <strong>A10</strong> had delivered to his (PW2's) Najjanakumbi house, and identified them as explosives; and then he <strong>A3</strong>took them awayto hishouseat Para Zone Namasuba. </p> <p>                                                He further testified that in the Namasuba house, <strong>A3</strong> kept the two personswho 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 <strong>A3</strong>'s Namasuba house; and that<strong>A3</strong> explained to him his role in the detonation of the explosives.<strong>A3</strong> 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, <strong>A3 </strong>sent money to him (PW2) from Mombasa through Biashara Forex Bureau, with instructions to him (PW2) to remove <strong>A3</strong>’s properties from, and vacate, the Namasuba house.<strong>A3</strong>also sent him money from Mombasa for bailing out PW1.</p> <p>                                                However,<strong> A3</strong>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 haswrongly painted him as the architect of the Kampala attacks; and he labeledPW1 as a self–confessed liar. He pointed out that there was no evidence in corroboration of PW1's evidence regarding his <strong>A3</strong>'s and PW1'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 possiblyexplain the FBI's finding of the presence of his DNA on the mattress cover recovered from PW2' home. He denied that he ever bookedfor accommodationatNaigara Hotel.</p> <p>                                                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, whileusing 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 <strong>A1 </strong>to <strong>A12 </strong>herein have been indicted.Section 132 of the Evidence Act (Cap. 6 Laws of Uganda, 2000 Edn.) provides as follows:–</p> <p><em>"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."</em></p> <p>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 corroboratingthat of theaccomplice, 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 <strong><em>Rasikial Jamnadas Davda vs Republic [1965] E.A. 201</em></strong>, at p. 2017, the Court laid down the rule as to who an accomplice is, as follows: –</p> <p><em>"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 <strong>Davies vs Director of Public Prosecutions [1954] 2 W.L.R. 343</strong>; <strong>[1954] 1 All E.R. 507</strong>; 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:</em></p> <p><em>'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)'. </em></p> <p><em>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 (<strong>[1954] 2 W.L.R. at p. 353</strong>):</em></p> <p><em>'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 </em>[the jury]<em> 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.'"</em></p> <p>In <strong><em>The King vs Baskerville [1916]2 K.B. 658</em></strong>, the Court held that there is no doubt the uncorroborated evidence of an accomplice is admissible in law. In <strong><em>Nassolo vs Uganda [2003] 1 E.A. 177</em></strong>, the Court restated the position that a judge must warnhimself 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 PW2on his own plea of guiltywhen he confessed to having played a central role in perpetrating the crime. He testified at the trial while serving a twenty–fiveyear sentence I had earlierimposed on him.</p> <p>He did notseek 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.</p> <p>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 witnessat the trial. He firmly expressedhis wishto 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 <strong>A1</strong> to <strong>A12 </strong>have been indicted; and so, I am boundto treat their evidence with the greatest caution, as is required of me.</p> <p>Ifind useful guidance for this, in the case of <strong><em>Uganda vs Khimchand Kalidas Shah &amp; 2 Ors [1966] E.A. 30</em></strong>, 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 <em>'put the cart before the horse'</em> 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:–</p> <p><em>"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 </em>[Court]<em> 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."</em></p> <p>At p. 34, the Court of Appeal added as follows:–</p> <p><em>"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."</em></p> <p>In the case of <strong><em>Kibale Ishma vs Uganda, Cr. A. No. 21 of 1998</em></strong>, the Supreme Court of Uganda followed the principles enunciated above, anddefined 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.  </p> <p>In the Indian case of <strong><em>Ramashaw vs The State of Rajasthan, AIR [1959] SC 54</em></strong>, which the prosecution cited to me, the Court clarified on corroboration; and paraphrased, it states as follows:–</p> <p>(i)         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.</p> <p>(ii)        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.</p> <p>(iii)       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.</p> <p>In the case of <strong><em>Susan Kigula &amp; Anor vs Uganda, S.C.Cr.A. No. 1 of 2004</em></strong>, the Court held that:–</p> <p><em>"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."</em></p> <p>In the instant case before me, regarding the participation of <strong>A3</strong>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 <strong>A3</strong> in the commission of the offence of terrorismfor which he has been indicted; despite <strong>A3</strong>'s vehement denial of any participation. However, there is a huge corpus of overwhelming evidenceadduced at the trial, as is shown below, corroborating the evidence adduced by PW1 and PW2, of <strong>A3</strong>'s guilt.</p> <p><strong>Corroboration of evidence adduced by PW1 and PW2 against A3</strong></p> <p>Police Officers Sgt. Christopher Oguso (PW59) and AIGP John Ndungutse Ngaruye (PW78) both testified thatupon the arrest of <strong>A1</strong>,they found him with a phone in whose phone book was saved telephoneNo.254732812681as the contact for'Basa'; whom <strong>A1 </strong>identified to the Police Officers as <strong>A3</strong>. He (<strong>A1</strong>) informed the Police Officers that <strong>A3 </strong>also had another telephone whose No. was 254719706497. It is the law that whereinformation 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 asfollows: –</p> <p><em>"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." </em></p> <p>An examination of the Call Data Record (CDR) for telephone No.254732812681, which <strong>A1</strong> informed the police as belonging to <strong>A3</strong>, 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 and25250460706, from the Namasuba geo–location.The CDR fortelephone No.254732812681also showed that it called<strong>A11</strong>, 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 <strong>A3 </strong>from Mombasa by Police Officer Superintendent of Police (S.P.) Zackaria Kiplagat Bitok (PW51). This arrest is confirmed by <strong>A3</strong> himself.</p> <p>PW31 also established that the two Kenyan tel.Nos. 254732812681 and 2547199706497, which Aidah Nabwami had disclosed as belonging to <strong>A3</strong>had, while roaming in Uganda,shared a phone handset (<em>exhibit PE299</em>) having IMEI (Serial No.) 35832403756470, with the Ugandan tel. No. 256772528289 which belonged to Aidah Nabwami. This handset (<em>exhibit PE299</em>) was recovered from Aidah Nabwami.Since the CDRs for the tel. Nos. 254732812681 (<em>exhibit PE145</em>) and 2547199706497(<em>exhibit PE137</em>) show thattheymade calls from the geo–location of Namasuba, they bolster the evidence of Juliet Kato (PW12) who was<strong>A3</strong>'s landlady for the Namasuba rented house,and that of Christine Ahumuza (PW15) who was <strong>A3</strong>'s neighbour at the Namasuba rented house, ascorroborativeof the evidence adduced by PW1 and PW2,that indeed <strong>A3</strong>had rented a house in Namasuba.</p> <p>The disclosure by the CDR of tel. No.254732812681 that it called tel. No. 252615624981 of Somalia corroborates PW1's testimony that <strong>A3</strong>had dealings with that country. Furthermore, the revelation by the CDR that the call to Somaliawas 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 <strong>A3</strong> and PW1 had been assigned from Somaliato carry out in Uganda. This is strong circumstantial evidence, which is corroborativeof the evidence by PW1 and PW2 that <strong>A3 </strong>had a central and lead role in the perpetration of the terrorist acts that were visited on Kampala on the11th July 2010; and for which <strong>A3 </strong>and others are now standing trial in this Court.</p> <p>The evidence that <strong>A3 </strong>was arrested from Mombasa, which <strong>A3 </strong>conceded to, afforded corroboration of the information obtained from Aidah Nabwami by the Police that <strong>A3 </strong>(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, <strong>A3 </strong>left for Nairobi; and thereafter sent him money using Biashara Forex Bureau co carry out certain specific instructions. The evidence that <strong>A1 </strong>had saved telephone No.254732812681 in his phone book as the contact for Basa, whom he identified to the Police Officers as <strong>A3</strong>, corroborated the evidence by PW1 that while in Somalia he knew <strong>A3</strong>as Basayevu. For sure, 'Basa' was a short form for Basayevu.</p> <p>Juliet Kato (PW12) who was <strong>A3</strong>'s Namasuba land lady, and Christine Ahumuza (PW15) who was a tenant of PW12 at Namasuba, and <strong>A3</strong>'s Namasuba neighbour, both testified that they knew <strong>A3</strong> as Moses; and that<strong>A3</strong>, left the rented Namasuba houseprematurely, and without giving notice to the landlady. This of course corroborates the evidence by PW2 that <strong>A3</strong>, calling himself Moses, booked <strong>A10</strong> for the night at the Naigara Hotel; and that <strong>A3</strong>, 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 remittedmonies, on a number of occasions, to one Idris Nsubuga in Kampala; as is shown by the record of the remittances (<em>exhibit PE128</em>). This also corroborated the evidence of PW2 in that regard.</p> <p>Further corroboration of the evidence of PW2 about the remittances of money to him by <strong>A3</strong>, isprovided 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 <em>exhibits PE100 (a), (b),</em> and <em>(c)</em>. The other evidence corroborative of that of PW2, that <strong>A3</strong> 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.</p> <p>The evidence adduced by these witnesses, Juliet Kato (PW12) who was <strong>A3</strong>'s Namasuba landlady, and Christine Ahumuza (PW15) who was <strong>A3</strong>'s neighbour at Namasuba, as well as that of the handwriting expert (PW27), do not onlycorroborate PW2's evidence that indeed <strong>A3</strong>operated under the name of Moses in the execution of the Kampala bombing mission and thereafter, as has been pointed out above. They alsocorroborate PW2's evidence thatit was <strong>A3</strong>, 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 themin accordance with the specific instructions <strong>A3</strong> had given him; such as collecting <strong>A3</strong>'s properties from, and vacating, the Namasuba house.</p> <p>The evidence from the computer records atMalaba Immigration station shows that <strong>A10 </strong>crossed to Uganda through Malaba on 9th May 2010; and this is admitted by <strong>A10. </strong>Itwas seized upon by the defence to controvert the evidence by PW1 that he travelled with <strong>A10 </strong>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 liedto 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; butI am unable to attachmuchimportance to the disparity between the dates given by PW1 and <strong>A10 </strong>for coming to Malaba from Nairobi en route to Uganda.</p> <p>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, <strong>A10 </strong>had the benefit of his passport, as well as the record at the Ugandan Immigration station at Malaba, from whichhe established the specific date he crossed into Uganda. Be it as it may, what is of importance here is that both PW1 and <strong>A10 </strong>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 <strong>A10</strong> came alone as he maintains, is not that crucial for determining the truth or otherwise of their respective assertion.</p> <p>In <strong><em>Karsan Velji vs R. [1957] E.A. 702</em></strong>, 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: –</p> <p><em>"It is not, of course necessary to lay the date of an offence with precision, unless it is of the essence of the offence. <strong>R vs Dossi 13 Cr. App. R. 158</strong>; <strong>Archibold (33rd Edn.) 49</strong>; <strong>Kamau s/o Gikera and Others vs R. (1955) 22 E.A.C.A.539</strong>." </em></p> <p>The admission by <strong>A10 </strong>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 <strong>A10 </strong>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 <strong>A10</strong>– whom he would not have known– had travelled to Uganda, and through Malaba, around that time? Furthermore, the admission by <strong>A10 </strong>about his crossing into Uganda also corroborates that of PW2 that after <strong>A3 </strong>called him to expect a visitor he(<strong>A3</strong>) came to his (PW2's) house at Najjanankumbi, with <strong>A10 </strong>and delivered a bag, which later he (<strong>A3</strong>) showed him was containing explosives.</p> <p>The handwriting expert (PW27) who examined a known sample of the handwriting of <strong>A3</strong>, against the handwriting in the Guest Registration book of Naigara Hotel (<em>exhibit PE279</em>) made on the 9th May 2010, by one Moses, concluded in his report (<em>exhibit PE102</em>) that the two samples were written by the same person.In the case of <strong><em>Hassan Salum vs Republic [1964] E.A. 126</em></strong>, the handwriting expert had in his evidence before the trial Magistrate, stated that he had <em>'no doubt whatever'</em> 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:–</p> <p><em>"The only reported case which I have discovered which is of assistance in the present case is <strong>Wakefield vs Lincoln (Bishop) (1921) 90 L.J.P.C. 174</strong> in which Lord Birkenhead observed:</em></p> <p><em>'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'.</em></p> <p><em>I would refer also to a passage from the summing up of Lord Hewart in the trial of <strong>William Henry Podmore</strong> (I quote from the FAMOUS TRIALS SERIES as the only source available to me), when he said:</em></p> <p><em>'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.'</em></p> <p><em>I think the true answer was given by the witness in the <strong>Bishop of Lincoln</strong> 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 saying that they were written by the same hand.</em></p> <p><em>... ... There is a presumption that no two persons have identical fingerprints, but there is no presumption that no two persons have similar handwritings." </em>(<strong>emphasis added</strong>).</p> <p>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 myown 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; butbecause PW2 testified, that he saw <strong>A3</strong> write in the booking Register, the evidence is not entirely circumstantial. In <strong><em>Barland Singh v. Reginam (1954) 21 E.A.C.A. 209, </em></strong>at p. 211, the Court held that this type of circumstantial evidence, though not entirely inconsistent with innocence, maycorroborate 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 co–existing circumstance that would weaken or altogether negate it.</p> <p>The 'other evidence' that goes alongside this circumstantial evidence is in the testimony by PW2 that <strong>A3 </strong>personally booked <strong>A10</strong> in the Naigara Hotel; and that <strong>A3 </strong>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 <strong>A3</strong>, signed therein as Moses. This circumstantial evidence, though not entirely inconsistent with innocence, suffices to prove the guilt of <strong>A3</strong>, without the need to show the absence of a negating co–existing circumstance. In this regard therefore, the reportby PW27 (<em>exhibit PE102</em>), except for his excessive opinion,corroborates the evidence by PW2 that <strong>A3</strong>booked <strong>A10</strong>into Naigara Hotel for one night.</p> <p>'Witness I' (PW39), an FBI special Agent,tendered in evidenceforensic examinationfindings by one FBI scientist known as Richard Striker,that <strong>A3</strong>’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 (<em>exhibit PE117</em>), and D/AIP Icoot Robert (PW68) and D/SP Pius Caningom (PW69)alltestified that from there, they hadrecovered a mattress as well as other items they listed in the search certificate (<em>exhibit PE117</em>). This is the evidence which <strong>A3 </strong>seized up onto support his contention that the discovery of his DNA in the mattress cover, which wasrecovered from PW2's home,could possibly beexplained by the fact that he had spent a nightat PW2's house; albeit only once.</p> <p>However, the FBI report of the forensic examination also showed the finding oftraces of explosiveson the mattress cover; thus corroborating PW2’s evidence that he collected the mattress from <strong>A3</strong>’s Namasuba residence where <strong>A3 </strong>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<strong>A3</strong>'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 (<strong>A4</strong>) 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.</p> <p>The contention by <strong>A3 </strong>that he in fact spent a night at PW2's home at Najjanakumbi, which he claims could explain the presence ofhis DNAon the cover of the mattressrecovered 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 wantCourt to believe; butratherthat they enjoyeda close relationship. This would then corroborate PW2’s evidence that with regard to the Kampala mission, <strong>A3</strong>recruited him andmade him his (<strong>A3</strong>'s) confidante in the execution of the terrorist mission in Kampala; and to carry out certaininstructions after the July 2010 twin blasts, as has been shown above in his testimony.Accordingly then, <strong>A3</strong>should not be allowed to eat his bread and still hope to have it at the same time.</p> <p><strong>A3</strong>made anextra–judicialstatement toHis Worship Francis Kobusheshe (PW3) on the 10th of August 2010; and it was admitted in evidence as <em>exhibit PE94</em>.In it, <strong>A3</strong> 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 themin 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 chosehim 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.</p> <p>Pursuant to this, he came to Uganda in January 2010 to carry out surveillance for the best places to execute the mission; andin May 2010, he rented a house in Namasuba for the mission. He disclosed further therein that he recruited PW2, and his brother <strong>A4 </strong>to participate in the mission. He collected explosives from National Theatre Kampala, delivered by <strong>A10 </strong>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 livedin 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.</p> <p>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 <strong>A4</strong> to take Kakasule the suicide bomber to Ethiopian Village Restaurant, and also totake 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<strong>A4</strong> and PW2 was to evacuate his Namasuba house upon the planned bomb blastshaving 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.</p> <p>Her Worship Agnes Nabafu (PW4) recorded the extra–judicialstatement of <strong>A4</strong>; who revealedthat he is brother to <strong>A3 </strong>and <strong>A13</strong>. He disclosed that two weeks before the Kampala July blasts 2010, <strong>A3 </strong>recruited him into the mission to attack Kampala; and briefed him on what he (<strong>A3) </strong>wanted him (<strong>A4) </strong>to do. He accompanied<strong>A3</strong>and PW2 to carry outthe surveillance on the Makindye House, and <strong>A3</strong> showed him Ethiopian Village Restaurant also, where <strong>A3 </strong>wanted him to take the explosives to.<strong>A3 </strong>then took him to Namasuba house, and introduced him as Abdul Karim to two people he found staying there; and he (<strong>A3</strong>) told him that these two (one of whom was a Somali looking person and the other a dark person) were the persons he would be staying with at the Namasuba house.</p> <p>After this,<strong> A3</strong> showed him the bags he (<strong>A4) </strong>was to take and drop, one each, at Makindye House and Ethiopian Village Restaurant respectively. He also showed him the jackets, which were to be used in the mission.He and <strong>A3</strong>then came to town; where from,<strong> A3</strong> gave him money and instructed him to buy two used phonesfor 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.</p> <p>However, at the trial, both <strong>A3</strong>, andA4, retracted their respective extrajudicial statements. I then had toconduct a trial within a trial in each case; at the end of whichI made a finding that the judicial officer (PW3) who recorded <strong>A3</strong>'s statement, satisfactorily complied with the procedure required for recording such extra–judicial statement. The assertion by <strong>A3 </strong>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.</p> <p>As for <strong>A4</strong>, his extra–judicial statement was admittedly, in certain respects<strong>, </strong>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 <strong>A4</strong>, because although PW4 did not record any caution as having been administered to him,<strong> A4 himself</strong> testified that he accepted the charges against him, though out of fear; thereby disclosing that he was in fact informed of thecharges against him. At the trial, <strong>A4 </strong>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 thathe successfully resisted a concerted attempt to sodomize him; by kicking one of his assailantsdown. However, one of them seized his genitals; which paralyzed and over powered him.</p> <p>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 understandwhy, apparently without a fight, <strong>A4</strong> succumbed to eating pork, which he knows to bean abomination; but on the other hand,he vigorously foughtand overcame the attempt to sodomize him. I find his assertion thatpolice officer Godi (now deceased) sat next to the Magistratewhen hegave his extra–judicial statement to the Magistrate (PW4), andkept 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.</p> <p>With regard to the instant extra–judicial statement, which <strong>A4</strong> now retracts, I would have probably believedhim if the non–compliance by the judicial officer were merely procedural; such as forgetting to have <strong>A4</strong> 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 non–compliancewith the rule laid down for recording such statement. </p> <p>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, <strong>A3</strong> and <strong>A4 </strong>have made confessions amounting to'<em>a full admission of their individual guilt'</em>in the commission of the offence charged.In it, they do not only fully, and unreservedly, incriminate themselvesas being guilty of committing the offence for which they have jointly been charged; but they both alsoimplicate 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:–</p> <p><em>"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."</em></p> <p>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 theretracted extrajudicial statements made by <strong>A3</strong> and <strong>A4</strong>. In <strong><em>Ezera Kyabanamaizi &amp; Ors vs R. [1962] E.A. 309</em></strong>, none of the appellants had given evidence on oath; but they had, each, only made an unsworn confession statements. The Court distinguished between a sworn and an unsworn statement, at p. 314, as follows:–</p> <p><em>"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:</em></p> <p><em>'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.'</em></p> <p><em>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; <strong>Muthige vs R. (1954) 21 E.A.C.A. 267</strong>. 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:</em></p> <p><em>'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 a greater degree, it is then only that it can afford a sort of safeguard for truth. </em></p> <p><em>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.</em></p> <p><em>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 a 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 co–accused. 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. </em></p> <p><em>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.'"</em></p> <p>In their respective confession statements, <strong>A3 </strong>and<strong>A4</strong> 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 theirrespective 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 findthat each of them made their confessions voluntarily; hence, their confessions must be true. Accordingly, I take their confessionsinto considerationas 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.</p> <p>However, I am quite mindfulof the fact thateach of the confessionsI am taking into considerationcan never be the basis for a conviction; as, on a proper direction, accomplice evidence can be<em>.</em>I can only find out if, from other independent evidence proved in Court, either of the confessionssupplementsa substantial case existing against the individual confessor or the co–accused persons named therein. I find that <strong>A3</strong>'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 <strong>A3,</strong> in this regard.</p> <p><strong>A3</strong>'s detailed narrative in his confession on how he recruited PW2 and <strong>A4</strong> into the mission, and deployed them in the execution of the Kampala attacks, supplements the evidence by PW2, and the confession by <strong>A4</strong>, on how <strong>A3</strong> recruited and deployed themfor that purpose. It also supplements the evidence by PW2 that <strong>A3</strong> delivered a bag containing explosives to him at Najjanakumbi.<strong>A3</strong>'s confession also supplements that of Juliet Kato (PW12) who was <strong>A3</strong>'s Namasuba landlady, and Christine Ahumuza (PW15) who was a tenant of PW12, and <strong>A3</strong>'s Namasuba neighbour). Both of them testified that they knew <strong>A3</strong> as Moses; and that <strong>A3 </strong>left the rented Namasuba houseprematurely, and without giving notice to the landlady. <strong>A3</strong>'s confession also supplements the evidence by PW2, and the confession by <strong>A4</strong>, that he (<strong>A3</strong>) kept suicide bombers in the Namasuba safe house.</p> <p>This confession by <strong>A3</strong> also supplements the evidence by PW2, and the confession by <strong>A4</strong>, that after instructing them to evacuate his properties from the Namasuba house, he (<strong>A3</strong>) left Kampala for Nairobithe day before the Kampala twin blasts. It also supplements the evidence by PW31, PW59, and PW78 that the Kenyan tel. Nos. attributed to <strong>A3</strong>by <strong>A1 </strong>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 fromMombasa, supplements the evidence by PW2 that <strong>A3</strong>, using the name Moses Huku, remitted funds to him from Mombasa; andalso theevidence by the Mombasa manager of Biashara Forex Bureau (PW52),and the Kampala branchAccountant forthe Forex Bureau (PW23),regarding the money transfers made by Moses Huku from Mombasa.</p> <p>Finally, his confessionthat 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 <strong>A4</strong>, that he <strong>(A3) </strong>left Kampala for Kenya the day before the Kampala blasts, due to his fearthat, owing to his record with the police,they would arrest him if the blasts took place when he was in Kampala.The confession by <strong>A4</strong> on his dealings with <strong>A3</strong>, supplements and lends assurance to the evidence by PW12 (the Namasuba landlady)that <strong>A3 </strong>rented her house at Pala Zone Namasuba; but left prematurely, and without giving her any notice. It also supplements that ofPW2 thatit was in this house that <strong>A3</strong>kept the explosives, as well as thecell members including the suicide bombers who were later deployed at Kyadondo Rugby Club and Ethiopian Village Restaurant.</p> <p><strong>A4</strong>'s confession equally supplements PW2's evidence on <strong>A3</strong>'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 <strong>A4, </strong>together with the respective suicide bombers assigned to each of them, withthe explosives,for the execution of the mission. This confession also supplements that of <strong>A3</strong> himself, which details his (<strong>A3</strong>'s) role, together with <strong>A4</strong> and PW2, in the execution of the Kampala attacks; as has been shown above by other independent evidence. <strong>A4</strong>'s confession, further still, supplementsthe evidence by PW2 that he removed <strong>A3</strong>'s mattressand other items from <strong>A3</strong>'s rented Namasuba house,and took them to his (PW2's) house in Najjanankumbi, pursuant to <strong>A3</strong>'s instructions before he left for Nairobi.</p> <p>True,<strong> A3</strong> first kept the explosives at PW2's Najjanankumbi; but later relocated them to his (<strong>A3</strong>'s) Namasuba house; wherethey were finally connected and wired from.This therefore serves to negate the contention by <strong>A3</strong>in his unsworn statement at the trialthat the fact that he had once spent a night at PW2's residence, after attending a party together with PW2, explainsthe discovery by the FBI of a predominant presence of his DNA on the mattress cover recovered from PW2's house at Najjanankumbi. The confession by <strong>A4</strong>also supplements PW2's testimony that after <strong>A3</strong> had issued the instructions for the final execution of the mission, he left Kampala for Nairobi one daybefore the impending bombblastswere to occur.</p> <p>It is manifest from the confessions made by<strong>A3</strong>and <strong>A4,</strong> that they are both accomplices in the crime for which they have jointly stood trial with the other accused persons. However, both <strong>A3 </strong>and <strong>A4 </strong>did not make their confessions on oath; soit would be improper and inadvisable to treat them in the category of the other accomplices, such as PW1 and PW2, whotestified 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 <strong>A3</strong>and <strong>A4</strong>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.</p> <p>In this I am bolstered by the case of <strong><em>Girisomu Bakaye and Others vs Uganda [1965] E.A. 621</em></strong>, 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: –</p> <p><em>"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. </em></p> <p><em>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."</em></p> <p>In the matter before me, prosecution adduced evidence that <strong>A4</strong> 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 <strong>A4</strong>'s retracted confession that he did participate in the Kampala bombing mission. In the <strong><em>Ezera Kyabanamaizi &amp; Ors vs R.</em></strong> 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:–</p> <p><em>"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'.</em></p> <p>At p. 318, the Court further stated as follows:–</p> <p><em>"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 (<strong>Bassam and Another vs R. [1961] E.A. 521 (C.A.) at p. 530</strong>). 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. </em></p> <p>In <strong><em>Asoka vs Republic [1973] E.A. 222</em></strong>, the trial judgestated 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: –</p> <p><em>"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 <strong>Anyango vs Republic [1968] E.A. 239</strong>, this Court said at p. 322:</em></p> <p><em>'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' (<strong>Anyuna s/o Omolo vs R. (1953) 20 E.A.C.A. 218</strong>); and can only be used as lending assurance to the other evidence against the co–accused (<strong>Gopa s/o Gidamebanya vs R. (1953) 20 EACA 318</strong>)</em><em>.' </em></p> <p><em>... ... In the judgment of this Court in the <strong>Gopa</strong> case,this Court ... ... after approving various quotations from <strong>Sarkar on Evidence</strong>, 9th Ed, and of <strong>Monir's Evidence</strong>, 3rd Ed., said at p. 322:</em></p> <p><em>'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 that approach is the wrong one and that a confession can only be used as lending assurance to other evidence against the aco–accused, evidence which only falls short by a very narrow margin of the standard of proof necessary for a conviction.'</em></p> <p><em>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."</em></p> <p>Inthe instant case before me, I have warned myself on the danger of acting on the retracted confessions by <strong>A3</strong> and <strong>A4</strong>, without corroboration. It is evident that the two confessions do notonlylend assurance to the other evidence adduced before Court,pointing to the participation of <strong>A3 </strong>(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, whichI have identified above. Such evidence includes that of Police Officers (PW59 and PW78), on the use of the name Basayevu by <strong>A3</strong>; the Namasuba landlady (PW12), on the renting and unexplained premature vacating of her rented house by <strong>A3</strong>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 <strong>A3</strong>participated in committing the crime of terrorism.</p> <p>In <strong><em>Karsan Velji vs R. [1957] E.A. 702</em></strong>, 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: –</p> <p><em>"In <strong>Robert Sinoya and David Sinoya vs R. (1939) E.A.C.A. 155</strong>, 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  ... </em>[given]<em> 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 (<strong>Miligwa s/o Mwinje vs R. (1953) E.A.C.A. 255</strong>); and he should have looked for independent corroborative evidence implicating the appellant in a material particular."</em></p> <p>In <strong><em>Fabiano Obeli and Others vs Uganda [1965] E.A. 622</em></strong>, 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 <em>'with the greatest caution'</em>. On appeal, the Court stated at p. 623 as follows: –</p> <p><em>"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. </em></p> <p><em>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. </em></p> <p><em>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 <strong>Bassan and Wathobia vs R. [1961] E.A. 521</strong>, at p.530:</em></p> <p><em>'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.'."</em></p> <p>In <strong><em>Tuwamoi vs Uganda [1967] E.A. 84</em></strong> 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: –</p> <p><em>"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."</em></p> <p>At p. 89, the Court stated as follows: –</p> <p><em>"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." </em></p> <p>With regard to whether a retracted statement should be treated differently from a repudiated one, the Court stated from pp. 90–91 as follows:–</p> <p><em>"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."</em></p> <p><strong>Conduct incompatible with innocence, as corroboration</strong>:-</p> <p>PW2 testified, and <strong>A4</strong>alsostated in his extrajudicial–statement admitted in evidence, that <strong>A3</strong> gave them instructions, thendeparted for Nairobi the day before the execution of the scheduled explosions at Kyadondo Rugby Club, Ethiopian Village Restaurant, and Makindye Houseto 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 <strong>A3</strong>'s landlady (PW12), and PW2, and stated by <strong>A4</strong> in his extra–judicial statement,<strong>A3</strong> left his rented premises at Namasuba prematurely, andwithout informingPW12 of his termination of the tenancy. He instead left it to PW2 and <strong>A4</strong>to collect his properties from the rented premises.<strong>A3</strong>'s conduct was entirely incompatible with innocence; andit corroborates the evidence adduced by PW1 and PW2, as well as the extrajudicial statements he and <strong>A4</strong>made,about his<strong>A3</strong>'s central role in the execution of the mission.</p> <p>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 (<strong>A3</strong>) 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 (<strong>A3</strong>) is certainly guilty of the offence of terrorism c/ssection 7(2) of the Anti Terrorism Act, 2002, as charged; and I accordingly convict him of that offence.</p> <p><strong>(ii) Participation of Hussein Hassan Agade (A1)</strong></p> <p>The evidence adduced by PW1is that when he went to Somalia in 2009, among those he found at an Al–Shabaab camp in Kismayu was <strong>A1</strong>, who he knew then as Hassan. He and <strong>A1</strong>had their militarytraining 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 phonebearing IMEI (Serial No.) 351528042707070 (<em>exhibit PE185</em>)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.</p> <p>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 &amp; Lighting Company overelectricity bill for meter A/c No.2759149-01 (<em>exhibit PE159</em>).</p> <p>This meter was traced to the property of 'Witness L' (PW53) who identified its user ashis tenant then, Hussein Hassan. PW53 provided Police with the tenancy agreement between himself and Hussein Hassan (<em>exhibit PE129</em>),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 <em>exhibit PE135</em>. Hussein Hassan(<strong>A1</strong>) was arrested by Police officer No. 58309 Sgt. Kenedy Osare Rasugu (PW48), and was found with a phone (<em>exhibit PE295</em>) having a Simcard bearing this tel. No.254715855449; and he made a handwritten inventory, and a typed one, both of which <strong>A1</strong>duly signed (<em>exhibits PE123(a)</em> and <em>PE123(b)</em>). Upon his arrest, <strong>A1</strong> 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 <strong>A3</strong>.</p> <p>Police officerAIGP 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.)359338035921630with two Kenyan tel. Nos.; namely 254715855449 and 254732812681when they were roaming in Uganda; as is shown by the CDRs for the two Kenyantel. Nos. (<em>exhibits PE322</em> and <em>PE350 respectively</em>).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.</p> <p>The analysis showed that the two Kenyan tel. No. 254715855449 (registered in the name of <strong>A1</strong>, 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 <strong>A1</strong>'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<strong>A5</strong>), and also with tel. No. 254719706497 belonging to<strong>A3</strong>. Furthermore,<strong> A1’s</strong> tel. No. 254715855449also sharedanother phone bearing IMEI (Serial No.) 35933803898908 with <strong>A3</strong>'s tel. No.254719706497.<strong>A1</strong>'s tel. No. 254715855449 had also sharedanother phone bearing IMEI (Serial No.) 35822903686264 with <strong>A3</strong>'s tel. No.254719706497.</p> <p>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<strong>A1</strong>informed police that <strong>A3</strong>was the user of tel. Nos. 254719706497 and 254732812681.Further analysis by PW59established that <strong>A1</strong>’s tel. No. 254737588445 communicated with three tel. Nos. between 22nd June 2010 and 10th July 2010. It communicated eight times with<strong>A3</strong>’s tel. No. 254732812681 between 30th June 2010 and 1st July 2010; twenty fourtimeswith tel. No.254732783568 between 3rd July 2010 and 10th July 2010; and nineteen timeswith tel. No. 254734045678 between 22nd June 2010 and 23rd June 2010.All these communications were by SMS only.</p> <p>Analysis of the CDR of <strong>A1</strong>’s tel. No. 254715855449 shows it communicated forty nine times with <strong>A2</strong>’s tel. No. 254720945298 (<em>exhibit PE134</em>) between 1st June 2010 and 10th July 2010.It communicated 49 times with <strong>A3</strong>’s tel No. 254719706497 (<em>exhibit PE137</em>) between 1st of June 2010 to 10th of July 2010. It also communicated fifteen times with <strong>A3</strong>’s tel. No. 254700745965 between 1st of June 2010 to 10th July 2010.It communicated fourteen times with <strong>A7</strong>’s tel. No.254771666668, and also communicated nine times with <strong>A11</strong>’s tel. No.254735766637. It also communicated once with <strong>A6</strong>’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.</p> <p>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 (<strong>A7</strong>), confessed his role in the terrorist activities. He also revealed that on the day the explosives were being transported to Kampala, <strong>A10</strong>called him and informed him of the arrest of PW1 over his documents; and requested him to call <strong>A11</strong> to give the contact of another person in Kampala to receive the bags containing the explosives. He called and met <strong>A11</strong> in Nairobi; and gave him the information from <strong>A10</strong> regarding PW1. At the request of <strong>A11</strong>, he called <strong>A1</strong> who joined them. After a discussion between <strong>A1</strong>, <strong>A11</strong>, and one Jabir, which he did not attend, they asked him for <strong>A10</strong>'s tel. contact.</p> <p>In his unsworn statement at the trial, <strong>A1</strong> who testified as DW9 denied the offence. He also denied that heimplicated 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 <strong>A2</strong>; but as his fellow street preacher. He however denied any prior knowledge of<strong>A3</strong> and <strong>A11</strong> before he metthem in prison. He denied ever being in Somalia; and pointed out that infact PW1, whom he remindedCourt was a confessed liar, had not named him in his (PW1's) extra–judicial statement (<em>exhibit DE1</em>) as one of the persons he (PW1) claims to have been with in Somalia.</p> <p>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.<strong>A1</strong> also admitted that he was a tenant ofPW53; 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.</p> <p>The prosecution has however urged me to consider evidence adduced in Court, which it contends corroborates the evidence of PW1 about the participation of <strong>A1 </strong>in the commission of the offence of terrorism with which he has been charged. Theseinclude the trail of telephone calls showing a beehive of activities between the phone sets and telephone numbers which the police officers analyzed and linked<strong>A1</strong>to<strong>A3</strong>, and to Namasuba where<strong>A3 </strong>had a safe house. From this beehive of activities, a pattern is clearly discernible; revealing a trail beginning with theSIM 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 <strong>A1</strong>, which have been established to have been used by,and or found with,<strong>A3</strong>.</p> <p>The analysis of the cobweb of phone activities reveal that during the period leading to the Kamplala blasts, the phone traced to <strong>A1</strong>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.PW1testified that he and<strong>A1</strong>,together with other persons,trained and fought in Somalia; and further, that it was <strong>A1</strong> who, from prison,revealedto him the names of the Kampala suicide bombers as Kakasule and Mursal. In his confession statement,<strong> A7 implicates</strong> <strong>A1 </strong>of participation in the Kampala mission; thereby supplementing and lending assurance to the evidence by PW1 of <strong>A1</strong>'s participation. His participation is also corroborated bythe trail of his phone calls, linking him to <strong>A3 </strong>and to the phone and SIM card recovered from the Makindye House.</p> <p>The irresistible inferenceone would naturally draw from the use of sms, and the geo–location of the calls being mainly the Namasuba area,where<strong>A3</strong>had a safe house for the Kampala attack mission, is that<strong>A1</strong>must have been playing a coordinating role in the mission.Tel. Nos. 254719706497 and 254732812681, which according to Police officer Christopher Oguso (PW59),<strong> A1</strong> hadrevealed to policeasbelonging to <strong>A3</strong>, are the very tel.Nos. Aidah Nabwami hadalso revealed to Namara Robinson(PW31)as belonging to her brother in law (<strong>A3</strong>).PW31 also testified thatAidah Nabwami, from whom the phone set (<em>exhibit PE299</em>) was recovered,told him that she had been given the phone by (<strong>A3</strong>); thus corroborating <strong>A1</strong>’s information to PW59 and PW78 about his dealings with <strong>A3</strong>. It also corroborates PW1's evidence that he (PW1), <strong>A1</strong>, and <strong>A3</strong>, were together in Somalia with, and fighting for, the Al–Shabaab.</p> <p>The revelation of the names of the suicide bombers by <strong>A1</strong> to PW2, from prison,means first that he was deeply involved in the Kampala mission; and second, it gives credence to PW1's evidence that he and <strong>A1</strong>were together in Somalia and were together involved in the missionto attack Uganda.Itis worthy of notethat the period between May to July, when the Kenyan tel. Nos. were roaming in Uganda, operatingmainly from the Namasuba geo–location, was the periodwhen,from the testimonies ofPW1 and PW2, cell members, suicide bombers, and the explosives, were delivered at <strong>A3</strong>'s Namasuba house; from where they were eventually dispatched to the various venues for detonation. This corroborates PW1's and PW2’s evidence that preparations for the blasts were made during this periodwhen <strong>A3</strong>, whom evidence shows <strong>A1 </strong>was linked to, was based at theNamasuba house coordinating and supervising the preparations for the blasts.</p> <p>It is also noteworthy that the various tel. Nos. hitherto in use, were switched off just before the Kampala blasts; as itstrongly points at a design meant to lose their trail, and thereby dissociate the users from the Kampala bombings. The circumstantial evidence provided by <strong>A1</strong>'s phone details and activities linking him to <strong>A3</strong> and the Namasuba geo–location, therefore corroborates that of PW1 regarding <strong>A1</strong>'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.</p> <p>Owing to the damning evidence linking his phone and tel. Nos. to <strong>A3</strong> and the phone recovered from the unexploded explosive device found at Makindye House, I think it was in <strong>A1</strong>'s interesttoexplain 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 <strong><em>Abdu Ngobi vs Uganda, </em></strong><em>(supra)</em>,the Supreme Court expressed itself as follows, with regard to the need for the defence to provide some explanatory evidence:–</p> <p><em>“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.”</em></p> <p>In the two combined appeals of<strong><em>(1) R. v. Sharmpal Singh s/o Pritam Singh; (2) Sharmal Singh s/o Pritam Singh v. R </em></strong>(supra), the Privy Council stated at pp. 17 –18 that: –</p> <p><em>“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.”</em></p> <p>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 <strong>A1</strong>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 himthe opportunityto punch a hole in an otherwise strong prosecution case against him; andthus enableCourt to also look at the other side of the coin, as it were. It certainly avoids therisk of Court having to determine his guilt, or otherwise, basing on the evidence adduced by the prosecution alone.</p> <p>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 (<strong>A1</strong>) 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.</p> <p><strong>(iii) Participation of Idris Magondu (A2) </strong></p> <p>Police officers PW59 and PW78testified that upon arrest of<strong>A1</strong>his   phone book was found to have tel. No.254720945298, which he revealed was the contact for <strong>A2</strong>,whom he revealed was his accomplice in the Kampala bombing mission. This tel. No. was established to be registered in the name of <strong>A2. </strong>Police officer No. 72600 Sgt. Stephen Musyoki Munyao (PW55) testified that he tracked this Safaricomtel. No.254720945298; and it led him to <strong>A2 </strong>whom he arrested, and from whom herecovered a phone (<em>exhibit PE297</em>) with a SIMcard of thattel. No.254720945298.The inventory for the recovery of the phone, which PW55 made is <em>exhibit PE305</em>. The call data record (CDR) of tel. No.254720945298 is <em>exhibit PE134</em>, and the report of the analysis of the call data record (CDR) for this tel. No., is <em>exhibit PE157</em>.</p> <p>Analysis of <em>exhibits PE134</em> and<em>PE297</em>, and consideration of the testimony of PW59, show extensive communication between <strong>A2</strong>'s tel. No.254720945298 and <strong>A1</strong>'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.<strong>A2</strong>'s tel. No.254720945298 communicated 18 times, between 2009 to 2010, with tel. No.254722366634 (registered in <strong>A9</strong>’s name). Police officer (PW59)testified further that<strong>A2</strong> led them (police) to the house of <strong>A11</strong>’s mother in Nairobi where they learnt fromone Jaffer Ali, a brother to <strong>A11</strong>,that <strong>A11</strong> had gone to Tanzania with wife; and this led to the arrest of <strong>A11</strong>from Tanzania.</p> <p>In his defence, <strong>A2 </strong>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 thathis tel. No. was +254724376909; which he used for communication with <strong>A1</strong>, a fellow street preacher in Nairobi.He conceded having communicated with <strong>A9</strong>; but explained that this was because <strong>A9</strong>was a driver of a truck, which ferried his kids to school.He contended that no evidence was adduced in Court that tel. No. +254720945298 was registered in his name. He also pointed out that PW55 neither recordedthe IMEI (serial No.) of the phone recovered from him; nor the SIM for the tel. No. found in it. He pointed out that only <strong>A1</strong> had told police that he (<strong>A2</strong>) was responsible for organizing transportation of suicide bombers to Kampala. He admitted the evidence of PW55regardingthe search at his place, andhis arrest.</p> <p>The recovery of a phone containing a SIM of tel. No. +254720945298 from <strong>A2</strong> was strong evidence that he was owner of that phone; and corroborated <strong>A1</strong>'s information to police that <strong>A2</strong> was the owner of that tel. No. Since <strong>A2 </strong>led Police to the house in Nairobi, from where police got information that <strong>A11</strong> had gone to Tanzania, leading to the arrest of <strong>A11</strong> there from, it further corroborates <strong>A1</strong>'s information to police that <strong>A2</strong> was his accomplice in the mission to attack Kampala. The contention by <strong>A2</strong> that no one else, apart from <strong>A1</strong> in his information to police, had associated him with having arranged the transportation of the suicide bombers to Kampala is not of any consequence. First, there is no rule requiring a plurality of witnesses to prove a case.</p> <p>Second, in the instant case before me, there is the evidence that upon <strong>A1 </strong>leading police to him as an accomplice, <strong>A2</strong> was found in possession of a phone containing the SIM of the tel. No. +254720945298, which was established to be registered in his name. Furthermore, he (<strong>A2)</strong> himself led police which was looking for <strong>A11</strong>, to <strong>A11</strong>'s mother; and this led to the arrest of <strong>A11</strong>. Third, as was pointed out in the case of<strong><em>Wainaina &amp; Others vs Republic [1973] E.A. 182</em></strong>, at p. 184, there is no requirement for corroboration of evidence by the police. Once the police adduces evidence, which Court finds to be cogent, as is the case here, with regard to the issue of <strong>A2</strong> being the registered user of tel. No.+254720945298, then in the absence of evidence to controvert it, Court will, as I hereby do, take the evidence as the truth.</p> <p>In any case even if the police evidence were not reliable, I would still have applied the decision in the case of<strong><em>Oketcho Richard vs Uganda S.C. Crim. Appeal No. 26 of 1995</em>, </strong>whichis authority for the proposition that: – </p> <p><strong><em>“</em></strong><em>Where there is no reliable independent evidence to support the complainant’s claim, it is the duty of the court to very carefully weigh the available evidence.”</em></p> <p>In the event, I find that there is ample evidence pinning Idris Magondu (<strong>A2</strong>) as having fully participated in the execution of the Kampala attacks; for which he has been charged with the offence of terrorism. I find him guilty as charged; and accordingly convict him.</p> <p><strong>(iv) Participation of Yahya Suleiman Mbuthia (A6) </strong></p> <p>Charles Kyalo (PW45) the Caretaker of Kaigokem Apartments at Kawangare Nairobi, testified that in 2010 <strong>A11</strong>, who introduced himself to him as Mustafa,came and inspected an apartment to rent. <strong>A11 </strong>was in the companyofsomeone whom he (PW45) identified in Court as <strong>A6</strong>. Later, however, Benson Mutisya (PW44) the Managing Estate Agent for Kaigokem Apartments, told him (PW45) that <strong>A11</strong> had executed a tenancy agreement and paid rent under the name of Mohamed Ali Mohamed. Indeed, when <strong>A11 </strong>came to occupy the apartment, his receipt for payment of rent had the name Mohamed Ali. Later, <strong>A6</strong> came with the keys to the apartment, collected Mohamed Ali's properties there from; and left the keys to the apartment with him (P45).</p> <p>Benson Mutisya (PW44) testified that around the 28th June 2010, <strong>A11 </strong>executed a tenancy agreement (<em>exhibit PE341</em>) with him for one month in respect of one of the apartments ofKaigokem Apartments.However, two weeks later, <strong>A11</strong> sent his brother whom he (PW44) identified in Court as <strong>A6</strong>, to vacate the apartment and collect the refund of the balance of the rent paid. He (PW44) authorized the clearing of the house, drew a cheque (<em>exhibit PE343</em>) in favour of <strong>A11</strong>, and gave a covering letter (<em>exhibit PE342</em>) for it. Police officer No. 61437 Sgt. Ezekiel Lulei (PW47) testified that he searched the house of <strong>A6 </strong>at Dagoreti, when he ((PW45)) had already been arrested; and recovered a cheque, and a letter authorising evacuation, from a Koran.</p> <p>Police officer (PW59) testified that Amina Shamsi (wife to <strong>A11</strong>) informed police that her husband had introduced <strong>A6</strong> to her as someone to contact in case of any problem. She gave the police, tel. No. 254737367444 as <strong>A6</strong>'s contact.The analysis of the call data record (CDR)for<strong>A6</strong>'s tel. No. 254737367444 (<em>exhibit PE151</em>) shows that it communicated with <strong>A11</strong>'s tel. No. 254732485079 between 4th August 2010 to 12th August 2010; using theSMS mode of communication only. The analysis of the call data record (CDR) for <strong>A11</strong>'s tel. No. 254732485079 shows that it was activated on 4th August 2010, and was switched off on 12th August 2010; and it communicated only with <strong>A6</strong>'s tel. No. 254737367444, and using the SMS mode of communication only, as has been pointed out above.</p> <p>In his defence, <strong>A6</strong> gave his statement not on oath; and made a blanket denial ofparticipation in the Kampala bombings. He admitted that Habib Suleiman Njoroge (<strong>A7</strong>)and Selemani Hijjar Nyamandondo (<strong>A10</strong>) are his brothers. He denied that he and <strong>A11</strong> had known each other, or that he collected <strong>A11</strong>'s properties from <strong>A11</strong>'s vacated rented house, and the rental refund. He even denied that the house in Dagoreti, where these cheque and covering letter were found, was his; or that the lady, Lydia, found in the house was his wife. He pointed out that the police did not involve him in the search of this home; and yet he was already in their custody. He denied that tel. No. 254737367444, which communicated with tel. No. 254732485079only, was his. He also denied communicating with <strong>A9</strong>; and contended that at the material time, he was in Juba working with an NGO.</p> <p>I must be quite clear here that I reject the blanket denial by <strong>A6</strong>as a pack of lies.I am fully convinced by the prosecution evidence that <strong>A6 </strong>accompanied <strong>A11</strong> in the search for an apartment at the Kagokem apartments; and later when <strong>A11 </strong>prematurely terminated the tenancy, he (<strong>A6) </strong>returned the keys for the apartment, and collected the cheque for the balance of the rent on behalf of <strong>A11</strong>. I also believe that indeed <strong>A11 </strong>introduced <strong>A6</strong> to his wife Amina Shamshi, as someone she could rely on in his absence; in case of need. Furthermore, I do believe that tel. No.254737367444 belonged to <strong>A6</strong>; and that in the period stated by the prosecution, it communicated with tel. No. 254732485079 only; and by SMS mode of communication only.</p> <p>However, in my considered view, the evidence above does not without more, pin <strong>A6 </strong>as having participated in the commission of the Kampala bombings. Unlike with <strong>A7</strong>, where there is some other evidence independent of <strong>A11 </strong>having advised his wife to rely on him in times of need, the case of <strong>A6</strong>is just the word of mouth of Amina Shamsi to the police; and no more. It is quite probable that indeed, <strong>A6</strong> knew of some criminal activities of <strong>A11</strong>; but there is no evidence that such criminal activity was the mission to attack Uganda. Furthermore, <strong>A11</strong>could have been engaged in some other criminal activity, which <strong>A6</strong>was aware of, but different from his participation in the execution of the Kampala bombings, which <strong>A6</strong> might not have known of. Even if <strong>A6</strong> knew of <strong>A11</strong>'s activities regarding the Kampala bombings, he might have been either just sympathetic to, or unconcerned with, it.</p> <p>In the case of<strong><em>Khatijabai Jiwa Hasham v. Zenab d/o Chandu Nansi [1957] E.A. 38</em></strong><strong>, </strong>the Court had to deal with a situation where the Defendant had lied to Court. Sir R. Sinclair, V.P. stated, at p. 51, as follows:–</p> <p><em>“It seems clear that, on a most material point his original evidence was deliberately untruthful, and if the case were to be decided on a mere balance of probabilities this would weigh very heavily against him. But the burden of establishing fraud lay on the appellant and was a heavy burden as it must always be. It could not be discharged merely by showing that the respondent was unreliable.”</em></p> <p>In<strong><em>Omari s/o Hassani v. Reginam (1956) 23 E.A.C.A. 580</em>, </strong> the appellant had been convicted on the statement of the deceased; and the trial Judge had drawn an adverse inference of guilt from his refusal to testify on oath, when the prosecution had according to the trial Judge <em>‘raised a fairly strong case against the accused'</em>. The Court of Appeal disagreed; and clarified, at p. 581, that:–</p> <p><em>“... a ‘fairly strong’ case is not in ordinary language the same as a case proved beyond reasonable doubt. … A Judge is, of course, entitled to take into account an accused person’s refusal to give evidence on oath, but not to use such refusal to bolster up a weak case or to relieve the prosecution from proving its case beyond reasonable doubt. Nor can such a refusal amount of itself to corroboration of evidence which requires to be corroborated”</em></p> <p>In the case of<strong><em>Gas Ibrahim v. Rex (1946) E.A.C.A. 104</em></strong>, the appellant had offered evidence in defence, which the trial judge had characterized as ‘nonsensical’; and had convicted him. In quashing the conviction, the Court of appeal, stated at p. 106 as follows:–</p> <p><em>“It is our view that where the prosecution case failed on its merits owing to the lack of the corroboration which the learned Judge found was necessary, that lack of corroboration cannot be remedied by the mere fact that the appellant put up a false and perjured defence. If an accused person in giving evidence in his defence commits perjury he can be punished for that offence. But his perjury cannot be prayed in aid to secure a conviction for murder where the evidence for the prosecution does not justify that conviction.”</em></p> <p>It is also important to take cognizance of the fact that although he is a brother toHabib Suleiman Njoroge (<strong>A7</strong>) and Selemani Hijjar Nyamandondo (<strong>A10</strong>), there is no evidence that he (<strong>A6</strong>) participated in any way in the planning, or execution of the plan to attack Uganda; which was given effect to by the Kampala bomb blasts. It is therefore my considered view that the evidence adduced against <strong>A6, </strong>does not cross that requisite legal thresholdnecessary to amount to proof beyond reasonable doubt that he participated in the planning or execution of the Kampala bombings. Hence, it is myfinding that the prosecution has failed to discharge the burden, that lay on it, to establish the guilt of <strong>A6</strong>; and for this reason, I have to acquit him of the offence of terrorism; with which he has been indicted.</p> <p><strong>(v) Participation of Habib Suleiman Njoroge (A7) </strong></p> <p>PW1testified that he first met <strong>A7</strong>in 2009 is Somalia;where theyunderwent military training with<strong>A7</strong> and others at Al Shabaab camps.They fought several battles together under the Al Shabaab. In Somalia, <strong>A7 </strong>was known as Imam; and he (PW1) learnt of <strong>A7</strong>'s name as Habib from prison. In Somalia, <strong>A11</strong> was called Julaibib; while<strong>A3</strong> was known as Basayev, and <strong>A1</strong> was known as Hassan. He (PW1), <strong>A7</strong>, <strong>A3</strong>, and <strong>A11</strong>, were members of the team constituted to attackUganda; and they were given special training for that mission.On the second occasion when he (PW1) went to Somalia, he travelled on a bus together with <strong>A7</strong>. Later, when he was called to Nairobi to collect the explosives for use in Uganda, <strong>A7</strong> was the one who opened the gate to the house at South B; where explosives were loaded into the motor vehicle of <strong>A10</strong>.</p> <p>Police officer Onen can Clix (PW5)recorded a charge and caution statement from <strong>A7</strong>on the 13th September 2010; but which however he repudiated,stating that he was forced to sign it after he had been subjected to physical and mental torture. I admitted it in evidence as a statement, which <strong>A7 </strong>had in fact voluntarily made. The reasons for my doing so, include that the medical examination carried out on <strong>A7</strong>by a doctor did not reveal any injuries or evidence of physical torture on him. Second, Police officer Onencan Clix was in fact not based at the place where <strong>A7</strong>was being detained and claims he was tortured from; but was instead detailed from the CID Headquarters to record <strong>A7</strong>'s cautioned statement. Third, the statement he (<strong>A7</strong>) made to PW5 is in fact not entirely a confession; as at the end he denies any guilt.</p> <p>In <strong><em>Usin &amp; Anor vs Republic [1973] E.A. 467</em>,</strong> in convicting the appellant, the trial judge relied on an unsworn but exculpatory statement made by the appellant's co–accused in his defence. The appellate Court pointed out that these were grave misdirection; and held, at p. 468, that: –</p> <p><em>"... an unsworn statement by a co–accused is not evidence against another accused (<strong>Patrisi Ozia vs R. [1957] E.A. 36</strong>), nor does it amount to accomplice evidence capable of acceptance after corroboration (<strong>Ezera Kyabanamaizi vs R. [1962] E.A. 309</strong>). Furthermore, the second appellant's unsworn statement was entirely exculpatory, and could not be taken into consideration against the first appellant s. 28 of the Evidence Act, which applies only to confessions."</em></p> <p>In <strong><em>Kantar Singh Bharaj &amp; Anor vs Reginam (1953) 20 EACA 134</em></strong>, there were only two unimportant discrepancies between the witness' statement and his evidence in Court. After laying down the procedure trial Courts should follow in such a situation to admit the statement, the Court of Appeal pointed out as follows:–</p> <p><em>"But that does not make what is said in the statement substantive evidence at the trial. Its only purpose and value is to show that on a previous occasion, the witness has said something different from what he has said in evidence at the trial, which fact may lead the Court to feel that his evidence at the trial is unworthy of belief."</em></p> <p>In the instant case before me, it makesno sense for the police tofabricate a statement for useto pin a suspectin the crime charged; and yet,includein the statementmaterial which in effect exculpates the suspectit is otherwise designed to crucify, by insteadsuggestingsuch a person's innocence. I therefore reject that part of the statement where <strong>A7</strong>seeks to exculpate himself; and accept the rest of the statement where he actually incriminates himself and implicates others with regard to their exploits in Somalia, and of participation in themission to attackUganda.</p> <p>In his cautioned statement, <strong>A7</strong>confessed that he joined Al–Shabaab in Somalia in 2006 on the persuasion of one Hanif.He received military training in Somalia with <strong>A11</strong>.He went back (to Kenya) leaving <strong>A11</strong> in Somalia; but he returned to Somalia in 2009, where he rejoined <strong>A11</strong>. They fought several battles together there. He left Somalia and came back to Kenya; and in January 2010, he saw <strong>A11</strong> at a mosque in Mombasa. In April/May 2010, <strong>A11</strong>and one Jabir informed him that they wanted to hire his brother's (<strong>A10</strong>'s) Toyota Land Cruiser. He called his brother <strong>A10</strong> to bring the vehicle; which <strong>A10 </strong>did, and they met at Dagoreti, Kawangware. <strong>A11 </strong>and Jabir brought PW1 whom they introduced as their client; and then Jabir brought four green bags and loaded them in the boot of <strong>A10</strong>'s vehicle, with instructions that no one should tamper with them.</p> <p>The following day, on a Sunday, <strong>A11</strong>and Jabir came with PW1; and then PW1 and <strong>A10</strong>left for Kampala. Later <strong>A10</strong>called and informed him of the arrest of PW1; and requested him to call <strong>A11</strong> to give the contact of another person in Kampala to receive the bags. He called <strong>A11</strong>who came with <strong>A1</strong>to him in Nairobi; and he gave them the tel. No. of <strong>A10</strong>, then he left for Mombasa. Police officers Sgt. Christopher Oguso (PW59) and ACP Robert Mayala (PW71) testified thatAmina Shamsi told them during investigations that tel. No. 254771666668 belonged to <strong>A7</strong>; whom she was advised by her husband (<strong>A11</strong>) to refer to in case of any problem. She told them that it was her husband (<strong>A11) </strong>who informed her that tel. No. 254771666668 belonged to <strong>A7</strong>.</p> <p>The call data records (CDRs) for<strong>A10</strong>'s tel. No. +255786065651, and tel. No.+256785268359 show that <strong>A7</strong>, using tel. No. +254771666668, was in constantcommunication with <strong>A10</strong>’s +255786065651 and +256785268359 between the 8thMay to 10th May,2010.The CDRs for tel. No. 255786065651 and tel. No.256785268359 also show that tel. No. 2540713286523(registered in the name of <strong>A7</strong>) communicated with tel. No. 25471159619 (registered in the name of one Hawa Musa) five times, by SMS, between 29th May 2010 and 18th July 2010 when it went off air.Police officer SP Simon Murage (PW49) testified that he made a search at<strong>A7</strong>’s apartment in Mombasa; and recovered <strong>A11</strong>’s documents, which included a photocopy of <strong>A11</strong>’s national identity card and others (<em>exhibits PE346, PE347,</em> and <em>PE348</em>) from there.</p> <p>In his unsworn statement, in his defenceasDW7,<strong>A7 </strong>admitted that <strong>A6 </strong>and <strong>A10</strong>are his brothers. He denied that he was a preacher; but was instead a radio presenter in Mombasa. He denied that he has been Somalia; and noted that PW1 did not mention him in his extra judicial statement as being one of those chosen for the Uganda mission. He also contended that there is no evidence that tel. No. 2540713286523washis; or that he owned tel. No. +254771666668 (<em>exhibit PE143</em>), which is shown to have called <strong>A10</strong> even after 9th October 2010 when hehad already been arrested. He also denied ever going to Kawangware; and contended that there is noinventory for <strong>A11</strong>'s properties allegedly recovered from his home. He contended that there was no proof of PW1's evidence that he transported the bombs to Kenya from Somalia; as <strong>A3</strong>'s extrajudicial statement does not state so.</p> <p>With regard to PW1 not having mentioned<strong>A7</strong> in his extrajudicial statement, I note that PW1 does not state in it that the persons he named therein were the only ones with him in Somalia; or that he specifically stated that <strong>A7</strong> was not there. For instance, he testified in Court that eight persons were assigned to carry out the Uganda mission; but he names only five of them, including <strong>A7</strong>; and also stated that he would only remember some of the persons he was with in Somalia upon seeing them. To my mind then, failureon the part of PW1 to name <strong>A7</strong> in his extrajudicial statement does not render his evidence in Courtunreliable or unworthy of belief. It is my finding that the extrajudicial statement is, in fact, not inconsistent with his sworn evidence; which merely gives a more detailed account.</p> <p>Learned defence Counsel pointed out that<strong>A7</strong>and <strong>A10</strong> are brothers; hence, even if it is true that in factusing tel.No. +254771666668 communicated with <strong>A10</strong>on<strong>A10</strong>'s tel. Nos. +255786065651 and +2567885268359, there would be no crime in this. I however think otherwise. To me, the communication between the two accused persons should not be explained simply bytheir blood relationship. It should, instead, be considered inthe light of the evidence that<strong>A7</strong> had to call his brother (<strong>A10</strong>) to come all the way from Arusha, Tanzania,and ferry some items from Nairobi to Kampala; instead of identifying a person from Nairobi where the items were, or from Mombasa where he (<strong>A7</strong>) was resident, to do so. Thiscould only have been because the mission was one of great secrecy; and so, demanded utmost trust and confidence. This, as has been shown by evidence,was the highly secretive transportation of explosives for a criminal purpose.</p> <p>I should point out that it is manifest that thetelephone communications took place at the very timeit is shown that<strong>A10</strong>travelled to Uganda, allegedlyfor the solepurposeof delivering the explosives that were to be used in the Kampala bombings. These telephone communications should also beconsidered in the light of the evidence adduced, that it was <strong>A7</strong> who notified<strong>A11 </strong>of the hitch in the plan to deliver the explosives to Kampala, caused by the arrest of PW1 at Malaba; which necessitated the identification of another person in Kampala to receive the explosives. Accordingly, the communication between <strong>A7</strong> and <strong>A10</strong> at the material time was certainly neither ordinary nor innocent. It is my finding that it was part, and parcel, of the criminal enterprise of delivering the explosives intended for the planned attack on Uganda.</p> <p>The cautioned statement made by <strong>A7</strong>,in which he incriminates himselfof participating in the Kampala bombings, supplements and lends assurance to a whole range of evidence adduced to prove his participation. Such evidence includes the accomplice evidence of PW1, the fact of the crossing into Uganda by <strong>A10</strong>, and the delivery of the explosives to <strong>A3</strong> in Kampala. It also includes the evidence regarding the recovery of<strong>A11</strong>'s documents from <strong>A7</strong>'s house in Mombasa; showing that<strong>A7</strong> closely knew <strong>A11</strong>, with whom he was deeply involved in the execution of the Kampala bombing mission.I am, therefore, satisfied that the prosecution has presented overwhelming evidence proving beyond reasonable doubt that<strong>A7</strong>was deeply involved in the execution of the plan to explode bombs in Kampala; for which I find him guilty as charged; and accordinglyconvict him.</p> <p><strong>(vi) Participation of Hassan Haruna Luyima(A4) </strong></p> <p>PW2testified that <strong>A3</strong> recruited him (PW2) and <strong>A4</strong> into the scheme to explode bombs in Kampala; and gave both of them keys to his (<strong>A3</strong>'s) Namasuba safe house.<strong>A3</strong> gave <strong>A4</strong>money with which <strong>A4</strong>purchased a Nokia 3510 and a Kabiriti phone, from Kafero Plaza in Kampala; then <strong>A4</strong>, took him (PW2) to the Namasuba safe house where he (<strong>A4</strong>) introduced him to the suicide bombers in the house as a brother. After they had conducted their separate surveillance, <strong>A4</strong> berated PW2 for returning to the Namasuba house late; as he had missed the connections of the explosives. A demonstration was done for PW2, following which<strong>A4</strong> encouraged him not to fear detonating the explosives using a phone; as all that he needed to do was to make a phone call. <strong>A4</strong>alsocautioned him to avoid being arrested; and advised him to blow himself up if he was faced with an arrest. </p> <p>He testified further that after the connections of the explosives, <strong>A4 </strong>left with one of the suicide bombers to take to the Ethiopian Village Restaurant, and for <strong>A4</strong>to proceed to the Makindye house; while PW2 left with the other suicide bomber for the Kyadondo Rugby Club. The day after the blasts <strong>A4</strong> comforted him over the blasts; and informed him that however, he had learnt that the Makindye House bomb had not detonated. <strong>A4 </strong>told him that he feared he (<strong>A4</strong>) could be arrested; so he had booked a bus to go to South Sudan. Later, <strong>A4</strong> called him from South Sudan complaining of living conditions there; so he was preparing to come back to Uganda. He testified further that <strong>A4</strong> was with the police who arrested him from his Najjanankumbi home in the evening of his arrest; and identified him to the police.</p> <p>In <strong>A3</strong>’sextra judicial statement (<em>exhibit PE94</em>),he confessed that he recruited his brother <strong>A4</strong>in the execution of the Kampala mission;and assigned him to take Kakasule, the suicide bomber, to Ethiopian Village Restaurant, and to deliver explosives at Makindye House.He gave <strong>A4</strong>thekeys for the Namasuba house where the final wiring of the explosives were done from; and gave him final instructions before he<strong>A3</strong> left for Nairobi.<strong>A4</strong>made an extra judicial statement (exhibit PE95),to Her Worship Agnes Nabafu (PW4) from Nakawa Chief Magistrate's Court, which he retracted; butI admitted in evidence for reasons I have already given in the course of dealing with <strong>A3</strong>'s participation.<strong>A4</strong>'s statement is consistent with that of <strong>A3 </strong>and the evidence of PW2regarding his (<strong>A4</strong>'s) role in the Kampala bombings.</p> <p>In his unsworn statement made in his defence, as DW11,<strong> A4 generally</strong> denied most of the evidence adduced by the prosecution against him. He attacked PW2's evidence against him as weak accomplice evidence. He retracted his confession; and attacked the document showing his mobile phone sets purchase from Majestic Plaza; pointing out that it shows a hire purchase transaction instead of it beinga receipt for payment made for the phones. He contended that at the time he allegedly bought the phones, he was also dealing in the sale of phones; so there was no need for him to buy phones from another person. He however admitted that he travelled to South Sudan after blasts; but contended that this was a routine business trip to Juba.He also admitted that he was arrestedfroma shop in the Pioneer Mall.</p> <p>As was the case with the retracted confession by <strong>A3</strong>, I have had to warn both the assessors and myself of the danger of acting on the uncorroborated confession by <strong>A4</strong>. I am however aware that upon exercising the necessary caution, I can nonetheless act on the confession, even without corroboration, if I am satisfied that the confession can only be the truth. I find that <strong>A4</strong>'s confession supplements, and lends assurance to, an array of evidence, which the prosecution has adduced against him. Such evidence includes that of Joseph Makubuya (PW19) that he sold two phones (a Nokia and a Kabiriti) to <strong>A4</strong>from Majestic Plaza on 9th July 2010. It also lends assurance to the accomplice evidence of PW2 that<strong>A4</strong>fled to South Sudan soon after the twin blasts, and after expressing fears that he might be arrested since the Makindye bomb, containing the phone he had bought from PW19, had failed to explode.</p> <p>On the other hand, I find corroboration of <strong>A4</strong>'s confession, and PW2's evidence on <strong>A4</strong>'s flight to Juba, inthe evidence of retired Police Sgt. James Owor (PW64) that from <strong>A4</strong>'s home,he recovered two bus tickets for trip to and from Juba (<em>exhibits PE290 and PE291</em>), and two temporary travel permits issued to <strong>A4 </strong>by South Sudan Government (<em>exhibits PE288</em> and <em>PE289</em>). Further evidence of his trip to South Sudan, is in the evidence ofSenior Immigration officer Daniel Ambaku Berra (PW26) that the record at Elegu border crossing point shows that <strong>A4 </strong>crossed to South Sudan on 13th July 2010; which was two days after the blasts. This is so although <strong>A4</strong>, while conceding in his defence that he travelled to South Sudan soon after the Kampala blasts, claimed that it was not an escape; but a routine business trip to Juba. I instead view this as conduct inconsistent with innocence.</p> <p>The confession by<strong>A4</strong>, and PW2's evidence,is also corroborated by the evidence adduced by PW17, PW18, PW41, PW42, and PW65, regarding the discovery of the explosive device whose components are (<em>exhibits PE256, PE258, PE260, </em>and <em>PE262</em>), and a Nokia phone (<em>exhibit PE185</em>), which had been placed at Makindye house. Further evidence, corroborative of <strong>A4</strong>'s, is in the remark from the Pioneer Mall shop No. 20by <strong>A13,</strong> to PW31 and his team, that it was <strong>A4 </strong>who knew more about the bombs. Further corroboration still, of <strong>A4</strong>'s confession and PW2's testimony, is in the fact that <strong>A4 </strong>disclosed the role PW2 performed in the crime, andled Police to the home of PW2; leading to PW2's arrest. It was also <strong>A4</strong>, who led police to <strong>A3</strong>'s safe house at Namasuba; where the suicide bombers and the explosives had been kept, and the final preparations for the Kampala bomb attacks had been made from.</p> <p>Similarly, it was also <strong>A4 </strong>who led police to the home he had rented at Namasuba;from where the police recovered a ZTE Kabiriti phone (<em>exhibit PE273</em>) with a Warid Sim card (<em>exhibit PE274</em>), and a Nokia Katosi phone cover,from a pit latrine which he had disclosed to police that he hadthrown the phones in. Therefore, it is my finding that the prosecution has adduced sufficient direct and circumstantial evidence, which proves beyond reasonable doubt that <strong>A4</strong> was involved in the execution of the mission hatched in Somalia to attack Uganda. He fully participated in the delivery of the explosive devices at the Makindye House; and the delivery of the suicide bomber and explosives at the Ethiopian Village Restaurant. Hence, I find him guilty; and convict him of the offence of terrorism as charged.</p> <p><strong>(vii) Participation of Omar Awadh Omar (A8) </strong></p> <p>Police officer SP Paul Maingo (PW61) testified that in 2009, the policegot information that Omar Awadh Omar (<strong>A8</strong>) was involved in recruiting for the Al–Shabaab, as well as financing and coordinating their activities. The police placed (<strong>A8</strong>) under surveillance; and in 2010 police got information of possible recruitment taking place at the home of <strong>A8 </strong>at Kalimani. The police carried out a search at that home; and recovered military items such as uniform, sleeping bags, and boots. The search also found <strong>A8</strong>with ten Kenyan passports bearing different names. <strong>A8</strong>was interrogated; but was, however, released.In 2010 he (PW61) interrogated <strong>A1</strong>personally, upon <strong>A1</strong>'s arrest; and <strong>A1</strong> revealed to him that the person saved in his (<strong>A1</strong>'s) phonebook as'Boss' under tel. No.254727555555, was Omar Awadh Omar; who was the financier of their operations for the Kampala attacks.</p> <p>He (PW61) received information from the U.K. that money was sent to <strong>A8</strong> from the U.K. throughQarani Forex Bureau in Eastleigh, Nairobi. PW61 andPolice officer No. 74734 Cpl. Jackson Merengo Chacha (PW67) obtained a printout of the transactions of the Forex Bureau (<em>exhibit PE174</em>) from the Manager Mohamed Mahdi. The record of the transactions shows that between 19th November 2009 and 3rd June 2010, eleven remittances, in the total sum ofUS$35,990, was made by one Omar Aziz Omar of the U.K. to Musa Ali of tel. No.254727555555 as recipient. Ten of the eleven remittanceswere collected by one Musa Dere, a wanted Al–Shabaab member, who the Manager of the Forex Bureau told (PW67), had been introduced to him by <strong>A8</strong>to collect them.</p> <p>The Manager of the Forex Bureau told PW67 thatMohamed Hamid Suleiman (<strong>A9</strong>), whose tel. No. 07222236664 was captured in the record of the Forex Bureau transactions, collected the other remittance in the sum of US$660.A search at Safaricom established that tel. No. 254727555555 was registered in the name of Omar Omar; and its CDR (<em>exhibit PE142</em>)shows that calls were made from it to a number of U.K. telephone contacts every time the remittances in issue were sent to Qarani Forex Bureau; beginning with the call to U.K. tel. No. +447908239425 made on the 19th November 2009.Prosecution <em>exhibit PE326</em> shows that tel. No. 254727555555 was roaming in Uganda on the MTN network between 7th May 2010 and 22nd June 2010.</p> <p>Police officer ACP Aguma Joel (PW66) testified that heintercepted and arrested <strong>A8</strong> at Malaba on 18th September 2010; andfound<strong>A8</strong>with three phones, tendered in evidence as exhibits <em>PE281, PE282,</em> and <em>PE283</em>.TheCDR of tel. No. 254727555555 (<em>exhibit PE142</em>) shows that the Nokia 1208 phone with IMEI (Serial No.) 356028036441427 (<em>PE281</em>), which was recovered from <strong>A8</strong> by PW66, had used the Sim for tel. No.254727555555 from 17th November 2009 up to 1st September 2010. Nokia 6233 phonewith IMEI (Serial No.) 352749014839340 (<em>exhibit PE282</em>) which was also recovered from <strong>A8</strong> by PW66, had also usedthe Sim for tel. No.254727555555 on 7th March 2009.</p> <p><strong>A8</strong> gave an unsworn statement in his defence as DW8; in which he admitted close association with <strong>A9</strong>, whom he once lived with, in the same estate, and communicated with regularly; but denied that he sent him to Qaran Forex Bureau. He also admitted that he came to Uganda just before the Kampala bomb attacks. He however denied that tel. No.254727555555 was his; and instead gave his tel. No. as 254722516950. He also pointed out thatPW2 never mentioned having seen him (<strong>A8</strong>) in Uganda. He claimed that he is on trial because his organization 'Muslims' Human Rights Forum'had released a document exposing abuse of rights by the Kenyan government, in conjunction with foreign government agencies like the FBI. He had researched and handed over materials to one Alamin, the Director, who signed it.</p> <p>He stated that he was arrested from Nairobi; and was hooded, handcuffed, and shackled, then driven to Malaba and handed over to Ugandan police. <strong>A8</strong>'s denial of ownership of tel. No.254727555555,was supported by <strong>A9</strong> who informed Court in his unsworn statement in his defence, that tel. No.254727555555 belongs to another person called Omar Omar Salim. However, the recovery of phones upon his arrest at Malaba, showing that they had used Sim for tel. No. 254727555555, corroborates the informationgiven to police by the Manager of Qarani Forex Bureau that this was <strong>A8</strong>'s telephone contact. Amina Shamsi's information to PW59 that it was<strong>A8</strong> who collected the key to their house from Kitangela when her husband (<strong>A11</strong>) had left for Tanzania, was supported by <strong>A6</strong>'s information to PW59 that it was <strong>A8</strong>who gave him the key to evacuate <strong>A11</strong>'s house at Kawangware.</p> <p>It wasfollowing this information, thatthe police recovered a cheque and a covering letter in the name of <strong>A11</strong>from <strong>A6</strong>'s home.This shows not only that Amina Shamsi is a reliable informant; but alsothat<strong>A6</strong>and <strong>A11</strong>were close to, and confided in, one another.I believe the information MohamedMahdi (the Manager for Qarani Forex Bureau), who could not be produced in Courtbecause he has vanished, and his Forex Bureau closed, gave the police that he disbursed the remittances to Musa Dere, andMohamed Hamid Suleiman on the instructions of <strong>A8</strong>. It was submitted for the defence that tel. No.254727555555 was registered in the name of Omar Omar; which is not the same as Omar Awadh Omar.</p> <p>I should however point out that tel. No. 254722366634 (<em>exhibit PE143</em>), which belongs to Mohamed Hamid Suleiman (<strong>A9</strong>), was instead registered in the name of Moahmed Hamid; leaving out the name Suleiman. Thisincomplete registration of <strong>A9</strong>'s name as user of this tel. No. makes it probable that the service providers may not have been that strict in recording the names of their registered users. Second,if I wereto believe <strong>A9</strong> that tel. No. 254727555555 belonged to a Mombasa businessmancalledOmar Omar Salim, then since this name is not the same as Omar Omar (the registered owner oftel. No. 254727555555), the same contention, which has been raised with regard to<strong>A8 </strong>beingthe registered user ofthat tel. No., would equally arise.</p> <p>This would then, and in the light of the evidence that it was <strong>A8</strong> who was authorizing the manager of Qarani Forex Bureau, through tel. No. 254727555555, to disburse funds to particular persons, present a very high probabilitythat the person registered as user of tel. No.254727555555 was in fact <strong>A8</strong>; notwithstanding that he was not registered by his full name.Even then, this offered nothing more than circumstantial evidence; and since, on this, the prosecution case is grounded exclusively on circumstantial evidence, before any conviction can be justified, there is need to narrowly examine the evidence and establish whether the inculpatory facts are incompatible with the innocence of the Accused (<strong>A8</strong>), and are incapable of explanation upon any reasonable hypothesis other than that of guilt.</p> <p>Further, there must be no co–existing circumstances that would weaken or altogether destroy the inference of guilt. I however have difficulty with the prosecution's evidence regarding <strong>A8</strong>'s alleged participation in recruiting for the Al–Shabaab. I find it most surprising and utterly inexplicable, and it defies all logic, that a person who is a known point man for the Al–Shabaab,as the prosecution claims<strong>A8</strong>was, is found red handed with military materials, and in questionable possession of a number of passports; but is not brought to book.There is the real possibility that indeed <strong>A8</strong> was still a linkman for the Al–Shabaab; and so, the money remitted to him and collected by Musa Dere, a known Al–Shabaab operative who was reportedly killed in Somalia, could possibly have been meant for operations in Somalia.</p> <p><strong>A8</strong>'s shadowy operation could have been out of fear of arrest again by the Kenyan police.This to me is a reasonable hypothesis that could explain his clandestine activities. However, there is the strong possibility that in all this, he had nothing to do with the Kampala bombings; and this would explain why neither <strong>A3</strong>nor <strong>A4 </strong>in their extrajudicial confessions, nor PW1 or PW2 who testified that a group of visitors came to Uganda for surveillance and coordination of the mission, named him amongst them. In fact, none of the prosecution witnesses named him as having attended any of the meetings for the planning or execution of the Kampala attacks. True, he was aware that <strong>A11 </strong>was leaving Kenya for Tanzania; and executed the evacuation of <strong>A11</strong>'s house.</p> <p>But there is no evidence that he was aware that <strong>A11 </strong>was guilty of participating in the Kampala blasts; or that he urged or assisted <strong>A11</strong>to flee to Tanzania. In any case, he is not being charged with the offence of being an accessory after the fact.He has given an explanation for his having come to Uganda; that he was born and partly raised in Uganda, and his mothera Ugandan lives here. It is quite plausible that indeed, as he claims, he came to Uganda to visit his family members and to arrange for his relocation to Uganda from Kenya.It is noteworthy that neither does PW2, in his evidence, nor do <strong>A3</strong> and <strong>A4 </strong>in their confession statements, mention <strong>A8</strong> as having played any role at all in executing the bomb blasts in Kampala.</p> <p>I agree that the prosecution has produced a fairly strong case against <strong>A8</strong>, which casts serious suspicion on him; but to my mind, that is not sufficient to prove beyond reasonable doubt that he participated in the execution of the Kampala mission.Because I find it quite instructivewith regard to determining whether prosecution has adduced evidence which proves beyond reasonable doubt that <strong>A8</strong> is guilty, I must again refer to the case of <strong><em>Omari s/o Hassani v. Reginam </em></strong>(supra)<strong>, </strong>wherethe trial Judge made a finding that the prosecution had<em>‘raised a fairly strong case against the accused'</em>; and had drawn an adverse inference of guilt, from the accused person's refusal to testify on oath, and convicted him. The Court of Appeal quashed the conviction; and made quite a strong statement, at p. 581, that:–</p> <p><em>“... a ‘fairly strong’ case is not in ordinary language the same as a case proved beyond reasonable doubt. ... A Judge is, of course, entitled to take into account an accused person’s refusal to give evidence on oath, but not to use such refusal to bolster up a weak case or to relieve the prosecution from proving its case beyond reasonable doubt. Nor can such a refusal amount of itself to corroboration of evidence which requires to be corroborated”</em></p> <p>I can only, here, repeat the words of the Supreme Court of Uganda in the case of <strong><em>Kazibwe Kassim vs Uganda, S. C. Crim. Appeal No. 1 of 2003; [2005] 1 U.L.S.R. 1</em></strong>at p.5;where the Court stated that:-</p> <p><em>“In the instant case, like the case of <strong>R. vs. Israeli – Epuku s/o Achietu (1934)1 E.A.C.A. 166, </strong>we are of the opinion that the evidence did not reach the standard of proof requisite for cases based entirely on circumstantial evidence. We are unable to hold that the evidence contains any facts which, taken alone amounts to proof of guilt… Although there was suspicion, there was no prosecution evidence on record from which the Court could draw an inference that the accused caused the death of the deceased to justify the verdict of manslaughter.”</em></p> <p>In the light of the authority of the case cited above, I am not satisfied that the prosecution has adduced the requisite evidence to prove beyond reasonable doubt that indeed <strong>A8</strong> participated in any way in the planning or execution of the Kampala bomb blasts. I therefore acquit him of the offence of terrorism for which he has been charged.</p> <p><strong>(viii) Participation of Mohamed Hamid Suleiman (A9) </strong></p> <p>The CDR for tel. No. 254722366634 (<em>exhibit PE143</em>), shows that it is registered in the name of Mohamed Hamid (<strong>A9</strong>). The printout of the transactions at Qaran Forex Bureau (<em>exhibit PE174</em>) shows that <strong>A9</strong>collected money from the Forex Bureau once; on behalf of the user of tel. No.254727555555. The CDR for <strong>A9</strong>'s tel. No. 254722366634 shows that it communicated with tel. No. 254727555555, one hundred and seventy two times from the year 2009. The CDR also shows that it communicated twelve times with tel. No. 254720945298 (for <strong>A2</strong>); and twenty four times with tel. No. 254713286523 (for <strong>A7</strong>). It communicated eight hundred and sixty seven times with tel. No. +254722516950 (which <strong>A8</strong> admits is his); and also communicated six times, with a U.K. tel. No. +447939067121. It also communicated three times with tel. No. 254715855449 (registered in <strong>A1</strong>’s name). Most of the communication was by SMS mode of communication.</p> <p>In his unsworn statement in his defence asDW5, <strong>A9</strong>admitted ownership of tel. No. +254722366634. He stated that <strong>A8 w</strong>as his colleague in the organisation known as Muslims' Human Rights Forum, and they had aclose relationship. He also stated he knew<strong>A2</strong>as a driver in the school, which his children attended; and <strong>A11</strong>as a security officer at the Saudi Embassy. He however denied knowing <strong>A1</strong> and <strong>A7</strong>. He claimed that tel. No. 254727555555 did not belong to Omar Awadh Omar; but to one Omar Omar Salim, a Mombasa businessman.He contended that nobody, not even PW1, named him as having been involved in the mission to attack Uganda. He also claimed that he had not known<strong>A6</strong>before their arrest; and pointed out thathis CDR does not show anywhere that he communicated with <strong>A6</strong>.</p> <p>I agree with the prosecution that <strong>A9</strong> is merely denying having had knowledge of<strong>A1</strong> and <strong>A7</strong>, before their arrest. The evidence from the CDR of his tel. No. shows that he communicated with them numerous times; using the SMS mode of communication, which it has been shown was the mode the Accused persons I have found guilty of the crime of terrorism had adopted. I also agree with the prosecution that <strong>A9</strong> lied when he stated that tel. No.254727555555 belonged to a Mombasa business man; and yet it was recovered from <strong>A8</strong> in addition to other evidence I have discussed above, pointing to <strong>A8</strong>as the user of that tel. No.The prosecution has also urged me to consider the resistance by <strong>A9</strong> during arrest as conduct inconsistent with innocence.</p> <p>I have given the evidence adduced and the prosecution submission considerable thought. I agree that lies by an accused may corroborate the prosecution case in that it would point towards his or her guilt. However, such lies can only be useful when it is made by an accused against the backdrop of a strong prosecution case against him or her. In the case of <strong><em>Gas Ibrahim v. Rex (1946) E.A.C.A. 104</em></strong>, the appellant had offered evidence in defence, which the trial judge had characterized as ‘nonsensical’; and had convicted him. In quashing the conviction, the Court of appeal, stated at p. 106 as follows:–</p> <p><em>“It is our view that where the prosecution case failed on its merits owing to the lack of the corroboration which the learned Judge found was necessary, that lack of corroboration cannot be remedied by the mere fact that the appellant put up a false and perjured defence. If an accused person in giving evidence in his defence commits perjury he can be punished for that offence. But his perjury cannot be prayed in aid to secure a conviction for murder where the evidence for the prosecution does not justify that conviction.”</em></p> <p>With regard to the instant case before me, the burden of establishing the guilt of <strong>A9</strong>, as charged, needless to say, lay squarely on the prosecution. This, I must admit,was quite a heavy burden, as it had to be, in view of the gravity of the offence with which <strong>A9</strong> has been indicted; and has stood trial.The burden cannot be taken to have been discharged by the mere fact that this Court has found <strong>A9 </strong>to have been unreliable, or even that he indulgedindeliberatefalsehood. Theprosecution has, I am afraid, failed to discharge this burden in a manner required by law; namely by adducing evidence proving beyond reasonable doubt that <strong>A9</strong>is guilty of participating in the Kampala bombings. Accordingly then, I acquit himof the offence of terrorism; with which he has been charged.</p> <p><strong>(ix) Participation of Mohamed Ali Mohamed (A11) </strong></p> <p>It wasPW1'stestimony that he was in Somalia together with <strong>A11</strong> who was known from there as Julabaid; and was one of his instructors at the Al Shabaab camp in Kismayu. They fought many battles together alongside the Al Shabaab. He (PW1) and <strong>A11</strong>were among the persons chosen to carry out the plan hatched in Somalia toattack Uganda; and were both present at the planning in Somalia for the attack. They were given a special training for the mission. He (PW1) left Somalia with <strong>A11</strong>, <strong>A3</strong>, Omar, and Jaberi; and they had explosives for the Kampala mission. At Mandera border, Jaberi handed over the bag containing the explosives to<strong>A11</strong> who crossed into Kenya with the explosives. <strong>A11</strong>then instructed him (PW1) to go and rent a house in Kampala; which both of them would live in for the execution of the mission.</p> <p>Later, Jaberi called him (PW1) to Nairobi; where he (PW1), Jaberi, Amal, and <strong>A11 </strong>planned together how to smuggle the explosives into Uganda. They proceeded to Kawangware, to a house at South B, where they met <strong>A7</strong> and <strong>A10</strong>. In his cautioned statement, recorded by PW5, <strong>A7</strong>discloses that he (<strong>A7)</strong> he went to Somalia with <strong>A11</strong>, in 2006; where they received military training together. He came back to Kenya; leaving<strong> A11</strong>behind in Somalia. In April or May 2010, <strong>A11</strong> and Jaberi contacted him (<strong>A7</strong>) that they wanted to hire his brother's (<strong>A10</strong>'s) Toyota Land Cruiser. He called his brother <strong>A10</strong> who came with the vehicle; and he (<strong>A7</strong>), <strong>A11</strong>, Jaberi, and PW1 (who was brought by <strong>A11 </strong>and Jabir, and was introduced as their client), met <strong>A10</strong> at Dagoreti, Kawangware.</p> <p>From there, Jaberi put four plastic bags in the boot of <strong>A10</strong>'s Land Cruiser; with the directive that no one should tamper with the bags. The following day, which was a Sunday, <strong>A11 </strong>and Jabir brought PW1 very early in the morning; and then PW1 together with <strong>A10</strong>, left for Kampala. Later, <strong>A10</strong> called him (<strong>A7</strong>) and informed him aboutthe arrest of PW1 at the border; and requested him to call<strong>A11</strong>to give him the contact of another person in Kampala who could receive the bags. He (<strong>A7</strong>)called <strong>A11</strong>and met himin Nairobi; and upon briefing him of what had happened to PW1, he (<strong>A11</strong>)asked him to call <strong>A1</strong>; which he did, and <strong>A1</strong>joined them. After a brief discussion between <strong>A1</strong>and Jaberi, which he (<strong>A7</strong>) however did not follow, they asked him for the contact of <strong>A10</strong>; which he gave them, and then he left for Mombasa.</p> <p>PW44, PW45, PW47, PW49, and PW73, testified that <strong>A11</strong>had rented a house in Kaigokem Apartments; but left within 2 weeks before the tenancy period had expired. He left his properties in the house; and sent <strong>A6</strong>to clear the house and collect the rent refund.Police officer (PW47) checked three apartments in Nairobi which <strong>A11</strong>had rentedin Kawangare and Joy Park; but found that <strong>A11</strong> had vacated all of them. Police officer PW73 arrested Amina Shamsi, wife of <strong>A11</strong>; who led him to the houses <strong>A11</strong> had rented in Nairobi and Mombasa, but he found that <strong>A11 </strong>had vacated all of them. A search conducted by Police officer (PW49) at the house of <strong>A7</strong> yielded some items belonging to  <strong>A11</strong>. These included utility agreements, and tenancy agreements, for rentals in Mombasa; and a photocopy of <strong>A11</strong>'s national identity card.</p> <p>Police officersPW59 and PW78testified thatupon the arrestof <strong>A1</strong>, he was the first person to inform police that <strong>A11</strong> was one of his accomplices. He (<strong>A1</strong>) gave <strong>A11</strong>'s phone contact as 254770451980; which was confirmed by Amina Shamsi (<strong>A11</strong>’s wife) as her husband's contact. She also gave them <strong>A6</strong>’s contact as 254737367444; and<strong>A6</strong>gave themtel. No.254732485079 as <strong>A11</strong>'s  contact. The CDR fortel. No. 254732485079 (<em>exhibit PE150</em>) showsthat between 4th to 12th August 2010, itwas in contact with tel. No.254737367444 only; using the SMS mode of communication only. All the calls from <strong>A11</strong>'s tel. No. 254732485079 were made from the Kitangela geo–location only.</p> <p>Police officer (PW59) traced <strong>A11</strong>up to Tanzania. He left his wife in Kenya after the Kampala bombings; and the wife did not know where he had gone, yet he was in Tanzania working for a private company. Police officer ACP Robert Mayala (PW71) arrested <strong>A11</strong> from Tanga, in Tanzania; and found that he was going by the name Ukasa Ali as shown by his Co. employee I.D. (<em>exhibit PE308</em>). However, his passport (<em>exhibit PE302</em>), Kenyan national identity card (<em>exhibit PE303</em>), and driving permit (<em>exhibit PE304</em>) all showed he was Mohamed Ali. Police officer ACP David Hiza (PW73) testified that he established from Amina Shamsi (wife to <strong>A11</strong>) that she had been in Somalia with her husband in 2009, when her husband was fighting there.</p> <p>She admitted that she had used her brother's phone, from Tanzania, to call Somalia; and that her husband, whose whereabouts she did not know, had told her from Kenya that the police were looking for him so he had to go back to Tanzania. In his unsworn statement made in his defence as DW12, <strong>A11</strong>denied the allegations made against him; contending that PW1 did not mention him at all in his extra judicial statement; nothing on his alleged Somalia role, his being chosen for Uganda mission, or his arranging for transportation of the bombs to Kampala. He pointed out that PW1 could not have feared him (in not naming himin his extrajudicial statement) since he had not yet been arrested at the time he made that statement. He also contended that, similarly, <strong>A7</strong> did not mention him in his cautioned statement.</p> <p>He admitted having rented severalapartments in Kenya, and vacating them before expiry of term. He however denied sending <strong>A6 </strong>(whom he never knew), but instead his brother Jaffery Ali Mohamed, to collect the refund of the balance of the rent from the landlord. He knew <strong>A9</strong> from Saudi Embassy; but never communicated with him. He only knew <strong>A3</strong> from Luzira prison. He knew no one in the U.K.; and never communicated with anyone there. He admitted that he was arrested from Tanzania. As with the confession statements considered herein, regarding the other accused persons, <strong>A7</strong>'s retracted confession can only supplement and give assurance to, and may corroborate, such evidence as has been adduced against <strong>A11</strong>. Such evidence includes that of PW1 about their exploits in Somalia, with <strong>A11</strong> and others.</p> <p>It also includes evidence by PW1 that he, <strong>A11</strong>, Jaberi, and Amal planned from Nairobi on how to smuggle into Uganda, the explosives to be usedin the attacks therein. It also includes PW1's evidence that he and <strong>A10</strong> left with the explosives for delivery in Kampala. It also includes the confession by <strong>A7 </strong>that he notified <strong>A11</strong> of the hitch in the plan to deliver the explosives to Kampala, owing to the arrest of PW1 at Malaba; which necessitated the identification of another person in Kampala to receive the explosives. It similarly includes the evidence by PW2 that explosives were first delivered to his home by <strong>A3</strong> and <strong>A10</strong>, and then later relocated by <strong>A3</strong> to Namasuba. It includes also the evidence that <strong>A11</strong> rented several houses in Nairobi, which he however left prematurely and under suspicious circumstances.</p> <p>It also includes the recovery of <strong>A11</strong>'s properties at the home of <strong>A7</strong> in Mombasa.It also includes the evidence that <strong>A11</strong> fled to and was arrested from Tanzania; where he was passing under an assumed name of Ukasa Ali.TheCDR for telephone No. 254732812681, which <strong>A1</strong>informed the police as belonging to<strong>A3, </strong>shows that it made a call to a Somalian tel. No. 252615624981, and to<strong>A11</strong>'stel. No. 254732812681, from the Namasuba geo–location where from the evidence <strong>A3 </strong>resided during the planning period. This, and the information <strong>A1</strong> gave police about their exploits with <strong>A11</strong> and others in Somalia, as well as the call <strong>A11</strong>'s wife made to a Somalian tel. No. from Tanzania, and her admission that she was in Somalia in 2009 with her husband (<strong>A11</strong>), is also corroborated by the retracted confession of <strong>A7</strong>, implicating <strong>A11 </strong>of participation in the Kampala bombing mission.</p> <p>I am therefore satisfied that the prosecution has, through direct and circumstantial evidence, proved beyond reasonable doubt that <strong>A11</strong> participated in the terrorism act, for which he has been charged; and so the prosecution has discharged the burden of proof that lay on it. I therefore convict him for that offence.</p> <p><strong>(x) Participation of Selemani Hijar Nyamandondo (A10) </strong></p> <p>In hiscautioned statement, <strong>A7</strong> confessedthat he called his brother (<strong>A10</strong>) from Tanzania to come over to him in Nairobi; and <strong>A10</strong>responded. He (<strong>A7</strong>) saw four green bags being loaded onto the boot of <strong>A10</strong>'s Toyota Land Cruiser, and instructions were given that they should not be tampered with.<strong>A10</strong>andPW1 then left in the Land Cruiser for Kampala; but later, <strong>A10</strong>called him (<strong>A7</strong>) seeking an alternative contact in Kampala for the delivery of the bags as PW1 had been arrested in Malaba. PW1 testified that he saw the bags being loaded into <strong>A10</strong>'s Land Cruiser from Nairobi; and later they left for Kampala, but he was arrested at Malaba, and <strong>A10</strong> proceeded alone. <strong>A3</strong>stated in his extra–judicial statement, that<strong>A10</strong>delivered the bags of explosives to him at National Theatre Kampala.PW2 testified that <strong>A3 </strong>and <strong>A10</strong> delivered bags containing explosives to his house at Najjanankumbi; and then <strong>A3</strong>booked <strong>A10 </strong>atNaigara Hotel for the night.</p> <p>The Immigration records at Namanga, Malaba, and Busia show that <strong>A10 </strong>entered and exited Uganda (8th and 10th May 2010 respectively) in Land Cruiser, which from <strong>A10</strong>'s admission was registered as T595 ADH. This is supported by the evidence of Witness 'A' (PW22) the Immigration officer of Malaba, Charles Nuwamanya (PW24) the Senior immigration officer in charge of Malaba, Rafael Muntinda (PW46) the Immigration officer of Busia but previously of Namanga, Tom Eleve (PW56) presently a Customs officer at the Jomo Kenyatta International Airport but formerly of Busia Customs point, Police officer SSP Alfred Majimbo (PW54), and Priscilla Michael Seleki (PW72) of Tanzania Revenue Authority Arusha. Further evidence of<strong>A10</strong>'s travel up to Uganda can be gathered from <em>exhibits PE132, PE163, PE122, PE101, PE131, PE301, </em>and <em>PE338</em>; and as well <strong>A10</strong>'s own admission.</p> <p>Police officersPW59 and PW73 testified that they got information from Amina Shamsi that<strong>A10</strong>’s contact was 255786065651; and this was confirmed by <strong>A10</strong>.The CDR of <strong>A10</strong>’s tel. No. 255786065651 (<em>exhibit PE155</em>) shows movement from geo–locations in Tanzania to Kampala Uganda, through Nairobi Kenya; and back to Tanzania,from 8th – 10th May 2010.<strong>A10</strong>’s tel. No. 255786065651 was in constant contact with <strong>A7</strong>'s tel. No.254771666668.The Call Data Record (CDR) for tel. No. 256785268359 (<em>exhibit PE328</em>) shows that it usedphone set with IMEI (serial No.) 356931034892 in the period when <strong>A10</strong> was in Uganda; and communicated with<strong>A10</strong>'s tel. No.254771666668 using it. This was the same phone set, which <strong>A10</strong> was usingtheTanzaniantel. No. 255786065651 in, between 8th May 2010 to 10th May 2010.</p> <p>In his defence, <strong>A10</strong>, who gave an unsworn statement as (DW10), admitted that he travelled to Uganda through Kenya between 8th May 2010 to 10th May 2010; and confirmed that he used his Land Cruiser, No.T595 ADH, which he identified as the very vehicle the prosecution attempted but failed to tender in evidence. He however contendedthat this was not the only time he hadcome to Uganda, since he had been transporting tourists all over the region, as owner of a Travel and Tour company. He however denied that he came up to Kampala in May 2010; contending, instead, that he stopped in Jinja. He denied that he travelled with PW1; and pointed out thatPW1 does not in his extra–judicial statement name him as having travelled together with from Nairobi to come to Uganda. He also pointed out that PW1 claims they travelled in April; whereas he, instead, travelled in May.</p> <p>He also pointed out that from PW1's evidence, he (PW1) did not see the items in the bags that were allegedly loaded into his (<strong>A10</strong>'s) Land Cruiser from Nairobi. He denied carrying explosivesin his vehicle when he came to Uganda in May 2010; and contended that the FBI forensic analysis supported him as itfound no trace of explosives in his motor vehicle. He also denied that he was the owner of tel. No. 255786065651 (<em>exhibit PE155</em>). However, from the fact this tel. No.and tel. No.256785268359having used the same phone handset for calling <strong>A7</strong>'s tel. No., when<strong>A10</strong> was in Uganda, the irresistible inference one is compelled to draw is that it was <strong>A10</strong> who was using both tel. Nos. This neatly links with the fact that it was <strong>A7</strong> who had summoned <strong>A10</strong> from Tanzania, to deliver the explosives to Kampala.</p> <p>The claim by <strong>A10</strong> that he terminated his journey in Jinja is negatived by evidence that the geo–locations of his calls, as is seen fromthe CDR for tel. No.256785268359 (<em>exhibit PE328</em>), included Kampala. This evidence corroborates that of PW2 that <strong>A3</strong>and <strong>A10</strong> delivered the explosives to his Najjanankumbi house. The retracted confessions by <strong>A3</strong> and <strong>A7</strong>also supplement and give assurance to the evidence that <strong>A10</strong> in fact came up to Kampala. I do not place much evidential value in the failure by the FBI to find any trace of explosives in the vehicle<strong>A10</strong>used to travel to Uganda. This is simply becausewhile the mattress, which <strong>A3</strong>used, may not have been washed from the timehe used it, the case of <strong>A10</strong>'s vehicle, which he was using for his tour business, was different. He must have, all the time, subjected it to meticulous washing and cleaningto impress and attract customers; and thiscould havetampered with any trace of explosives in it.</p> <p>Furthermore, the explosives were safely enclosed in suicide vests contained in bags, during their transportation to Kampala from Nairobi; and were kept in this state at PW2's Najjanankumbi house. They were, however, exposed at Namasuba house for wiring and connection; which musthave left traces of explosives on items there. Owing to the secrecy surrounding the mission, itobviously demanded that it be entrusted withaconfidante. I therefore have no reservation whatever that <strong>A10</strong> was not only aware of the packages he transported and deliveredto Kampala; but also of the purpose for their delivery. In the premises then, the prosecution has adduced overwhelming evidence, proving beyond any reasonable doubt, that <strong>A10</strong> participated in executing the Kampala mission; and so I convict him of the offence of terrorism as charged.</p> <p><strong>(xi) Participation of Abubakari Batemyeto (A5) </strong></p> <p>Police officer SP Martin Otieno Omumbo (PW63) testified that<strong>A3 </strong>disclosed, on arrest, that <strong>A5</strong> was his accomplice; and led PW63 to <strong>A5</strong>. PW63 recovered several phones from <strong>A5 </strong>including exhibit PE284; and a Sim card for tel. No. 254723457803, whose CDR showed it wasa Safaricom No. registered in <strong>A5</strong>’s name. This tel. No. 254723457803 roamed in Uganda between 1st May 2010 and 8th July 2010;during which time it shared a phone set having IMEI (Serial No.) 358324037568470, with <strong>A1</strong>’s tel. No. 254715855449, and <strong>A3</strong>’s tel. No.254719706497 The CDR for tel. No.254723457803 shows that it communicated to <strong>A3</strong> on <strong>A3</strong>’s tel.Nos. 254719706497 and 254700745965; mostly usingthe SMSmode of communication, which wasthe commonmode of communicationused by the Accused persons in the period leading to, and after, the Kampala bombings.</p> <p>Police officer D/AIP David Kitongo (PW29) testified that<strong>A5</strong>left Uganda through Malaba border point on 12th July 2010; which <strong>A5</strong> admits.In his defence, <strong>A5</strong> gave an unsworn statement as(DW6), in which he admitted that he was arrested from Mombasa; and that he was found with a phone upon his arrest. He admitted that tel. No. 254723457803 was his. He stated that he came to Uganda on 18th June 2010, and went back to Kenya on 12th July 2010; but that this was a routine trip, and that he came to get a maid for <strong>A3</strong>. He further pointed out that the CDR for his tel. No. 254723457803 (<em>exhibit PE140</em>) shows that he madeover sixty calls using the SMS mode of communication; but the prosecution chose only two messages out of them. He pointed out the absence ofany evidence that he communicated with <strong>A1</strong>.He however corroborated the testimony of PW31that <strong>A1</strong> has a brother called Dumba.</p> <p>While there is, indeed, evidence that <strong>A5</strong> shared a phone handset with <strong>A1</strong> and <strong>A3</strong>, when they were in Uganda, that alone is not sufficient to prove the information <strong>A3</strong> gave to PW63 that <strong>A5</strong> was his accomplice. <strong>A1</strong> and <strong>A3</strong> were people <strong>A5</strong> knew from Mombasa; and they might have requested to use his phone handset; and <strong>A5 </strong>might not have suspected anything. For a crime of the gravity, which terrorism is, I think the prosecution needed to provide more concrete evidence, direct or circumstantial, that indeed <strong>A5</strong> was a participant in the execution of the Kampala bombing mission; in order to pass the test for proof of <strong>A5</strong>'s guilt beyond any reasonable doubt. This, however, the prosecution has failed to do; and so, I have to acquit <strong>A5</strong> of the charge of terrorism with which he was charged, and has stood trial.</p> <p><strong>(xii) Participation of </strong><strong>Dr. Ismail Kalule</strong><strong> (A12) </strong></p> <p>Idris Nsubuga (PW2) testified that at end of July 2010, <strong>A3</strong>sent him to <strong>A12</strong>at Alidina mosque with a coded message inquiring about a patient; whom <strong>A12</strong> told him was PW1, who had earlier been arraigned at Nakawa Court forillegalpossession of a Ugandan passport.<strong>A12</strong>, who was happy to see him, told him that when one Issa Senkumba had been arrested, he had feared it was <strong>A3</strong>, but was happy to learn that <strong>A3</strong>was fine. <strong>A12</strong> told him that <strong>A3</strong> and PW1 operated together. He (<strong>A12</strong>) also told him that PW1 was arrested by JAT; and was detained at JAT headquarters in Kololo. He told PW2 that he had sent some Shabaab (young men) to PW1 in prison; and of his plan to get false documents to enable PW1 get bail. He also told PW2 that he would work on PW1's bail, and meet the costs as long as <strong>A3</strong> would refund him.</p> <p>Later, PW2 went back to<strong>A12</strong>who told him that PW1 had not been released because the Magistrate was on maternity leave; and that since the case was minor and not connected with the Kampala bomb explosions, he would arrange for a production warrant for PW1 the following day. After the release of PW1, he was sent by <strong>A3 </strong>with money to pay back the money <strong>A12 </strong>had used for bailing out PW1; and to pass his (<strong>A3</strong>’s) phone contact to <strong>A12</strong>. On his part, PW1 testified that he knew <strong>A12</strong> as teacher/scholar of Islam and a medical person. Before the bomb attacks in Kampala, he and <strong>A3</strong> agreed to use <strong>A12</strong>’s place as their contact point; and he was arrested from <strong>A12</strong>’s place when he had gone to thank him for bailing him out.PW31testified thathe arrested both PW1 and<strong>A12</strong> from <strong>A12</strong>'s Clinic.</p> <p>In hisunsworn statement in his defence, as DW1, in which he denied any participation in the offence of terrorism, <strong>A12</strong> went into an explanation of his complex professional attainment and occupation as a medical officer; stating that his duty is to save life. He denied any knowledge of, or dealing with, <strong>A3</strong> or PW2. He admitted dealing with PW1 from his clinic; butas an ulcers patient. He denied the allegation that he arranged for PW1's bail; andexplained that he always loaned monies to authorities of the nearby mosque, who would later refund the monies to him.I must confess that from the prosecution evidence, I am unable to discern any link between <strong>A12</strong> and the Kampala bombings. His knowledge of <strong>A3</strong>, and PW2, and his fearsfor the arrest of<strong>A3</strong>, does not make him a participant in the Kampala bombings.</p> <p>Equally, his involvement in securing bail for <strong>PW1</strong>, which I believe he did despite his denial, was withregard to the offence of being in possession of an illegal Ugandan passport; not over the charge of terrorism. Anintervention, either by providing funds or standing as surety, to secure bail for a remand prisoner is not criminal at all; as the right to apply for bail is a constitutional right. He was not privy to either the arrangement, or agreement, between <strong>A3</strong> and PW1 to meet at his Clinic; and in fact did not attend it. He can therefore not be held culpableif the meeting was for a criminal enterprise; since it washeld in his place without his knowledge or consent. In the event, I acquit him of the charge of terrorism, with which he has been indicted.</p> <p>For those of the Accused persons I have convicted, the doctrine of common intention, the authorities for which I cited earlier, applies to them. Each of them was actively involved, at different levels, and in different places, and time, in theexecution of the plan hatched in Somalia to harm Uganda for having contributed troops to the AMISOM undertaking. It does not matter that not all of them came together at any one time to confer on what to do, and how to do it. This was an enterprise whose members were far–flungall over the region. Nonetheless, they had a consensus ad idem on what they desired to do. They acted in concert, with each performing a crucial part and role in the execution of the crime; which complemented the action of, or the roles performed by, the others.</p> <p>It is clearly manifest that theyall prosecuted their criminal purpose knowingly; and with determination. It does not matter that ultimately only PW2 and the suicide bombers detonated the bombs that caused the deaths and injuries to so many. The convicts all played a part either in the planning, surveillance, delivery of the lethal explosives, or actual detonation of the explosives. They all knew that deadly attacks would be executed on Ugandan soil; and this came to pass, with the heart–rending consequence we now know resulted there from. Their seemingly separate actions were in fact joint and coordinated; and led ultimatelyto thedisastrousdeeds. They pursued the enterprise as a common purpose; which they did achieve, and for which they have stood trial, and been found guilty.</p> <p><strong>THE OFFENCE OF MURDER</strong></p> <p><strong>A1</strong> to <strong>A12</strong> were each indicted of 76 counts of murdercontrary to sections 188 and 189 of the Penal Code Act. The particulars of the offence in each count alleged that on the 11th day of July 2010, the respective Accused murdered the person named in the count. Each count named the specific place whereeach murder was committed; which was either at Kyadondo Rugby Club, or Ethipian Village Retaurant.Each Accused denied the charges; and a plea of not guilty was entered against each of them. It was submitted for the accused persons that the charges for the offence of murder should be struck off for being wrongly brought jointly with those of terrorism. I agree with the prosecution that neither the Trial on Indictments Act, nor the Antiterrorism Act, nor any other law, prohibits joinder of charges.</p> <p>To the contrary, section 23(1) of the Trial on Indictments Act provides that all offences, whether they are felonies or misdemeanors, may be charged together in the same indictment as long as the offences charged are founded on the same facts, or form, or are part of a series of offences of the same or similar character. The offences of terrorism and murder are distinct; with different elements to constitute each offence. In fact, it is a wise thing to do, to charge all the offences together; as the evidence sought to be relied upon is adduced once, and covers all the relevant charges.Second, neither murder nor terrorism is a minor cognate offence to the other. In fact, to constitute the offence of terrorism, death need not result from the terrorist act. Terrorism resulting in death is only one of the many instances where a person may be charged with the offence of terrorism.</p> <p>Although the word death is used in section 7(1) (a) of the Antiterrorism Act, this is not necessarily the same as murder. The elements needed to be established, to prove the death in the Antiterrorism Act, are based on the elements for terrorism; and only add death as a consequence of such act of terrorism. What is important here is that an act of terrorism that results in death, categorizes the gravity of the offence; and is relevant for sentencing the convicted person. Such sentence would then be put into consideration when sentencingthe same person for murder arising from the same act of terrorism.The prosecution had preferred 76 (seventy six) counts of murder, against <strong>A1 </strong>to <strong>12</strong>; but it abandoned four counts; namely counts 21, 62, 78, and 79, thereby leaving only 72 which it endeavored to prove.</p> <p>For each of the 72 counts, it was the duty of the prosecution to prove beyond reasonable doubt the following ingredients:–</p> <ol><li>Death of each of the persons.</li> <li>Unlawful causation of the death.</li> <li>Malice aforethoughtin causing the death.</li> </ol><p>     (iv)        Participation of the accusedin causing the death.</p> <p><strong>Ingredient (i):Fact of Death</strong></p> <p>The law, as was stated in <strong><em>Kimweri vs. Republic [1968] E.A. 452</em></strong>, is that proof of death may be achieved by presentation of a report of medical examination on such body; or, inter alia, by a person who physically saw the dead body. Prosecution proved the death of each of the 72 persons whose counts remained on the charge, as the defence never contested them; and they were each admitted in evidence by consent under the provisions of section 66 of the Trial on Indictments Act. These are persons named from count 4 up to count 79 (see <em>exhibits PE1</em> to <em>PE74</em>); save for counts 21, 62, 78, and 79, which the prosecution abandoned, as stated above.</p> <p><strong>Ingredient (ii): unlawfulness causation of Death.</strong></p> <p>It is a presumption of law, which has been restated in numerous cases such as <strong><em>R. vs. Gusambizi s/o Wesonga (1948) 15 E.A.C.A. 65</em></strong><em>; <strong>Uganda vs. Bosco Okello alias Anyanya, H.C. Crim. Sess. Case No. 143 of 1991 - [1992 - 1993] H.C.B. 68; </strong></em>and <strong><em>Uganda vs. Francis Gayira &amp; Anor. H.C. Crim. Sess. Case No. 470 of 1995 – [1994 - 1995] H.C.B. 16,</em></strong> that any incident of homicideis a felony; hence unlawful. However, as was stated in<strong><em> Festo Shirabu s/o Musungu vs. R. (22) E.A.C.A. 454</em></strong>, this presumption may be rebutted by the accused establishing, on a mere balance of probabilities, that the homicide iseither justifiable or excusable.</p> <p>Justifiable homicide is dictatedby duty. Such, include the execution of a lawful sentence of death, orthe termination of a patient's life–support by a family member or medical personnel (euthanasia) in a manner prescribed by law. It may also include fatality resulting from an attempt to arrest an escaping dangerous felon, when carried out in a manner not criminally careless or reckless. It is an absolute defence to any charge. Excusable homicide, on the other hand, is not owing to any evil design; but may occur under such instances as defence of self, or of a family member, or proportionate response to some offending provocation. It is dictated either by necessity, or is accidental. This reduces such homicide from murder, to a lesser offence; which, while still punishable, is only so to a lesser degree.</p> <p>From the evidence adduced by the prosecution a deliberate plan was hatched in Somalia to attack Uganda to punish her fordeploying troops in Somalia to protect the legitimate government of that country; which meant fighting the Al–Shabaab. This plan was ultimately executed by the deliberate delivery and detonation of explosives not in military encampments, but in places where ordinary members of the public were known to assemble. It is therefore quite clear that the multiple homicides, that resulted from the execution of this plan, were neither justified nor excusable.Accordingly then, in the absence of any evidence in rebuttal – and this was rightly conceded by the defence – the presumption that the multiple deaths were, all, unlawful homicides is well founded. </p> <p><strong>Ingredient (iii) – Malice aforethought</strong><strong>.</strong></p> <p>Section 191 of the Penal Code Act provides as follows:</p> <p><strong><em>“191. Malice aforethought.</em></strong></p> <p><em>Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances:</em></p> <p><em>(a)        an intention to cause the death of any person, whether that person  is the person killed or not, or </em></p> <p><em>(b)        knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused.”</em></p> <p>Unless the perpetratorof the causation of death has expressly declared his or her intention to cause death, malice aforethoughtwould remain an element of the mind; and can only be established by inference, derived fromthe conduct of the perpetrator, or the circumstances surrounding the causation of such death. This position of the law is well explained in the caseof<strong><em>H.K. Bwire vs Uganda [1965] E.A. 606</em></strong>, where Sir Udo Udoma C.J., sitting on appeal, stated at p. 609 as follows: –</p> <p><em>"I think it is a well–established principle of law that a man's intention in doing an act can seldom be capable of positive proof. Such an intention can only be implied from the overt acts of the person concerned; or to put it another way: where an intent is an essential ingredient in the commission of an offence such an intent in most cases can only be inferred as a necessary conclusion from the acts done by the person concerned. As a general rule, however, a man is taken to intend the natural and probable consequences of his own act. See <strong>R. vs Farrington (1881) R. &amp; R. 207</strong> and <strong>R. vs Harvey (1823) 2 B. &amp; C. 257</strong>."</em></p> <p>The factors from which malice maybe inferred, hasauthoritatively been laid down in the case of <strong><em>R. vs. Tubere s/o Ochen (1945) 12 E.A.C.A. 63</em></strong><em>;</em> andfollowedin such casesas <strong><em>Uganda vs. Fabian Senzah [1975]H.C.B. 136; Lutwama &amp; Others vs. Uganda, S.C. Crim. Appeal No. 38 of 1989.</em></strong></p> <p>The factorsinclude whether the weapon that was used to inflict the fatal injury waslethal or not; whether the parts of the body of the victim targeted were vulnerableor not; whether the nature of injury pointed to an intention to cause grave damage, as for instance where the injuriesare inflicted repeatedly, or not; whether the conduct of the assailant, before, during, and after the attack, points to guilt or not. In the case of <strong><em>Nanyonjo Harriet &amp; Anor. vs. Uganda, S.C.Cr.Appeal No. 24 of 2002</em></strong>, the Supreme Court reiterated the same factors stated above; and added that for a Court to infer that there was malice aforethought, death must have been a natural consequence of the act resulting in death, and the accused must be shown to have seen, or ought to have seen, it as a natural consequence of that act.</p> <p>In the instant case before me, following the decided cases cited above, there is overwhelmingevidence adduced by the prosecution, pointing at the homicides committed at the Kyadondo Rugby Club and Ethiopian Village Restaurant as having been perpetrated with malice aforethought.The perpetrators must, surely, have intended and known, or ought to have known, the natural consequence of their acts; namelythat either grievous harmwould result, or that deathwas inevitable.As was also conceded by the defence, and on the authority of <strong><em>Uganda vs. Turwomwe [1978] H.C.B. 16,</em></strong> whoever placed the explosives in the three venues did so with malicious intent.</p> <p>It matters not that from the evidence adduced, the perpetrators did not target any specific known person; or thatanother person, other than the one intended, was killed. All that is required, to establish the existence of malice aforethought, is that indeed death of a human being resulted following the intended unlawful act of killing a human being.It follows that on the principle of collective responsibility, which I have explained above, each of the accused persons, namely <strong>A1</strong>, <strong>A2</strong>, <strong>A3</strong>, <strong>A4</strong>, <strong>A7</strong>, <strong>A10</strong>, and <strong>A11</strong>, whom I have hereinabove found guilty of the offence of terrorism, is equally guilty of the offence of murder of the 72 persons, as charged,. Similarly, <strong>A5</strong>, <strong>A6</strong>, <strong>A8</strong>, <strong>A9</strong>, and <strong>A12</strong>, whom I acquitted of the offence of terrorism, are also each acquitted of the charges of murder of the 72 persons.</p> <p><strong>OFFENCE OF ATTEMPTED MURDER</strong></p> <p>Section 204(a) of the Penal Code Act, provides that any person who attempts, unlawfully, to cause the death of another person commits a felony; and is liable to imprisonment for life. Section 386(1) of the Act defines an attempt as follows: –   </p> <p><em>"When a person, intending to commit an offence, begins to put his or her intention into execution by means adapted to its fulfilment, and manifests his or her intention by some overt act, but does not fulfil his or her intention to such an extent as to commit the offence, he or she is deemed to attempt to commit the offence.  </em></p> <p><em>(2) It is immaterial–</em></p> <p><em>(a)        except so far as regards punishment, whether the offendor does        all that is necessary on his or her part for completing the             commission of the offence, or whether the complete fulfillment of his or her intention is prevented by circumstances independent of his or her will, or whether the offendor desists of           his or her own motion from the further prosecution of his or her       intention;  </em></p> <p><em>(b)        that by reason of the circumstances not known to the offender,          it is impossible in fact to commit the offence."</em></p> <p>Accordingly then, the ingredients of the offence are: –   </p> <ol><li>Intention to cause death of another person (malice aforethought)</li> <li>Manifestation of the intention by an overt act.</li> </ol><p>    (iii)    Participation of the accused.</p> <p>From the evidence I have considered above, while determining the commission of the offence of terrorism, and murder, it is quite evident that the delivery of the explosives in a place popular with revelers was intended to cause death; as it did, to many victims. Second, the several persons who received grievous injuries, including the ten named in the counts constituting this charge, were victims of that intention to unlawfully kill them. This also applies to the explosives, which were delivered at the Makindye house but, fortunately, did not explode. Accordingly then, the intention was put into action by the overt acts of <strong>A1</strong>, <strong>A2</strong>, <strong>A3</strong>, <strong>A4</strong>, <strong>A7</strong>, <strong>A10</strong>, and <strong>A11</strong>, whom I have convicted in the charges of terrorism and murder. I thereforeconvict each of them of the offence of attempting to cause the death of the respective persons named in each of the ten counts of the charge.</p> <p>Similarly, for <strong>A5</strong>, <strong>A6</strong>, <strong>A8</strong>, <strong>A9</strong>, and <strong>A12</strong>, whom I acquitted of the offence of murder, Iacquit each of them of the offence of attempted murder of the ten persons with which they have been charged.</p> <p><strong>OFFENCE OF AIDING &amp; ABETTING</strong></p> <p>Section 8 of the Antiterrorism Act provides as follows: –</p> <p><em>"Any person who aids or abets or finances or harbours, or renders support to any person, knowing or having reason to believe that the support will be applied or used for or in connection with preparation or commission or instigation of acts of terrorism, commits an offence and shall, on conviction be liable to suffer death."</em></p> <p>The ingredients of the offence are: –</p> <p>(a)        aiding, or abetting, or financing, or harbouring, or rendering             support to any person;</p> <p>(b)        knowing, or having reason to believe, that the support would be      applied inconnection with, or used for,the preparation or commission or instigation of acts of terrorism;</p> <p>(c)        the participation of the accused.</p> <p><strong>A12 </strong>has been charged alone; and with one count of the offence. However, the evidence adduced by PW1 and PW2 against <strong>A12</strong>, which I have already analyzed above, does not point at his having eitheraided, or abetted, or financed, or harbored, or rendered support to any person for the commission of the offence of terrorism or any other. The money he disbursed for bailing out PW1 was with regard to the offence of being in unlawful possession of a Ugandan passport. This is not an offence under the Antiterrorism Act. I have already pointed out, herein above, that standing surety for an Accused, or providing funds for the Accused's bail, is not an offence as it is provided for under the Constitution.</p> <p>Indeed, I am unable to see how money, which is deposited with the State,as bail money is, could be said to either aid, abet, or finance the commission of the offence of terrorism; or that in providing the funds, one would be harbouring or rendering support for the commission of the offence of terrorism or any other. For the reasons stated above, it is my finding that the prosecution has failed to prove beyond reasonable doubt, that <strong>A12 </strong>committed that offence; and so, I acquit him of it.</p> <p><strong>OFFENCE OF BEING AN ACCESSORY AFTER THE FACT</strong></p> <p><strong>A13</strong>was charged alone with two Counts of being an accessory after the fact; with the particulars stating that he received and assisted <strong>A4</strong>and PW2 in order to enable them escape punishment.Section 29 of the Antiterrorism Act provides as follows: –</p> <p><em>"Any person who becomes an accessory after the fact to an offence under this Act commits an offence and is liable, if no other punishment is provided, to imprisonment not exceeding three years or a fine not exceeding one hundred and fifty currency points; or both."</em></p> <p>Section 28 (1) of the Act defines the offence of being an accessory after the fact of an offence as follows: –</p> <p><em>"A person who receives or assists another who, to his or her knowledge, has committed an offence, in order to enable him or her to escape punishment."</em></p> <p>The ingredients of the offence are: –</p> <p>(i)         A person has committed an offence.</p> <p>(ii)        Another person has knowledge that the perpetrator has committed an offence.</p> <p>(iii)       The person with the knowledge that the perpetrator has committed an offence receives or             assists the perpetrator.</p> <p>(iv)       The person who receives, or assists, the perpetrator, does so with     theintention of enabling the perpetrator to escape punishment.</p> <p>(v)        The Accused is the person who, with the knowledge that another    person has perpetrated a crime, receives and assists the perpetrator to escape punishment.</p> <p>From the evidence of PW1 and PW2, and the retracted confession by <strong>A3</strong> and <strong>A4</strong>, as has been seen hereinabove, PW2 and <strong>A4</strong> had committed acts of terror in participating in the Kampala bombings. PW2 testified thatafter the blasts, he met <strong>A13</strong> who told him that <strong>A4 </strong>had briefed him (<strong>A13</strong>) about <strong>A4</strong>’s and PW2’s involvement in the bomb blasts; and he <strong>A13 </strong>approved of the attacks, and expressed regrets that the Makindye bomb had not exploded. He (<strong>A13</strong>) expressed the fear that police could arrest PW2 and <strong>A4</strong>; and so he advised PW2 to escape from the country.The two (<strong>A13</strong> and PW2) later discussed about the bomb blasts in <strong>A13</strong>'s car. PW31 testified that when police went to shop No. 20 at the Pioneer Mall, it was<strong>A13</strong> who identified <strong>A4</strong> as the culprit; thus leading to the arrest of <strong>A4</strong> from the shop.</p> <p>From the evidence adduced,all the ingredients of the offence of being an accessory after the fact have been established. In <strong><em>Wanja Kanyoro Mamau vs Republic [1965] E.A. 501</em></strong>, the Court stated at p. 504, that: –</p> <p><em>"We think it is quite clear that a passive attitude while a crime is being committed or following the commission of a crime will not ordinarily, of itself, make a person a principal offender, in the former case, or an accessory after the fact, in the latter. ... ... <strong>Zuberi Rashid vs R. [1957] E.A. 455</strong> ... ... ... lays down the general rule that:</em></p> <p><em>'it is not sufficient to constitute a person a principal in the second degree that he should tacitly acquiesce in the crime, or that he should fail to endeavour to prevent the crime or to apprehend the offenders, but that it is essential that there should be some participation in the act, either by actual assistance or by countenance and encouragement.'</em></p> <p><em>... ... ... It follows ... ... in our view, that while a person who aids and abets the commission of a crime or assists the guilty person to escape punishment is always an accomplice, a person who merely acquiesces in what is happening or who fails to report a crime is not normally an accomplice ...</em>"</p> <p>In the instant case before me, <strong>A13</strong>did not merely acquiesce in the bomb blasts which he knew <strong>A4</strong> and PW2 had participated in; he went further and advised PW2 to flee the country, to escape punishment. He was therefore an accomplice who aided and abetted the commission of the crime of terrorism by <strong>A4</strong> and PW2. I am, therefore, satisfied that the prosecution has proved his guilt beyond reasonable doubt; and so, I convict him as charged.</p> <p>In the result then, and for the reasons I have already given, but in partial agreement only with the lady and gentleman assessors, I find that only <strong>Hussein Hassan Agade</strong> (<strong>A1</strong>), <strong>Idris Magondu</strong> (<strong>A2</strong>), <strong>Issa Ahmed Luyima</strong> (<strong>A3</strong>), <strong>Hassan Haruna Luyima</strong> (<strong>A4</strong>), <strong>Habib Suleiman Njoroge</strong>(<strong>A7</strong>),<strong>Selemani Hijar Nyamandondo</strong> (<strong>A10</strong>), and <strong>Mohamed Ali Mohamed</strong> (<strong>A11)</strong>, are each guilty of committing the offences of terrorism, murder, and attempted murder, with which they have been indicted. I have, accordingly, convicted them for each of the counts of terrorism, murder, and attempted murder.I also find <strong>Muzafar Luyima</strong> (<strong>A13</strong>) guilty of the offence of being an accessory after the fact; and accordingly convict him.</p> <p>However,and in agreement with the lady assessor with regard to <strong>A6</strong> only, I find that <strong>Abubakari Batemyeto </strong>(<strong>A5</strong>), <strong>Yahya Suleiman Mbuthia</strong> (<strong>A6</strong>), <strong>Omar Awadh Omar</strong>(<strong>A8</strong>), <strong>Mohamed Hamid Suleiman</strong> (<strong>A9</strong>), and <strong>Dr. Ismail Kalule </strong>(<strong>A12</strong>), are each not guilty of the offences of terrorism, murder, and attempted murder, with which they have been indicted. Similarly, I find <strong>Dr. Ismail Kalule </strong>(<strong>A12</strong>), not guilty of the offence of aiding and abetting the offence of terrorism with which he was charged. Accordingly, I set each of them free forthwith; unless they are being held for some lawful purpose.</p> <p> </p> <p><strong>Alfonse Chigamoy Owiny – Dollo</strong></p> <p><strong>  JUDGE  </strong></p> <p><strong>26 – 05 – 2016<a id="_GoBack" name="_GoBack"></a></strong></p></span></div></div> </div> </div> Wed, 13 Jan 2021 08:44:13 +0000 Anonymous 6926 at http://ulii.org Uganda v Kamoga Siraje & 13 Ors (HCT-00-ICD-CR-SC-2015/4) [2017] UGHICD 1 (21 August 2017); http://ulii.org/ug/judgment/hc-international-crimes-division-uganda/2017/1 <span class="field field--name-title field--type-string field--label-hidden">Uganda v Kamoga Siraje &amp; 13 Ors (HCT-00-ICD-CR-SC-2015/4) [2017] UGHICD 1 (21 August 2017);</span> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 01/13/2021 - 05:25</span> <div class="clearfix text-formatted field field--name-field-search-summary field--type-text-with-summary field--label-above"> <div class="field__label">Search summary</div> <div class="field__item"><p>Criminal law</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.ulii.org/files/judgments/ughicd/2017/1/2017-ughicd-1_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=96835">2017-ughicd-1.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.ulii.org/files/judgments/ughicd/2017/1/2017-ughicd-1_0.pdf" type="application/pdf; length=628907">2017-ughicd-1.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><div> <p>THE REPUBLIC OF UGANDA</p> <p> IN THE HIGH COURT OF UGANDA AT KAMPALA</p> <p> (INTERNATIONAL CRIMES DIVISION)</p> <p>CRIMINAL SESSION CASE No. HCT - 00 - ICD - CR - SC - No. 004 OF 2015</p> <p> UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION</p> <p>VERSUS</p> <p> A1: SHEIKH SIRAJE KAWOOYA</p> <p>A2: SHEIKH MUHAMAD YUNUSU KAMOGA</p> <p>A3: SHEKH MURTA MUDDE BUKENYA</p> <p> A4: SHEIKH FAHAD KALUNGI</p> <p>A5: AMIR KINENE</p> <p>A6: HAKIM KINENE MUSWASWA</p> <p> A7: KAKANDE YUSUF alias ABDALLAH</p> <p>A8: SEKAYANJA ABDUL SALAAM alias KASIMU MULUMBA</p> <p>A9: SEMATIMBA ABDUL HAMID MUBIRU</p> <p>A10: HAMUZA KASIRYE</p> <p> A11: TWAHA SSEKITTO</p> <p> A12: JJINGO RASHID</p> <p> A13: MUSA ISSA MUBIRU</p> <p>A14: IGA GEORGE WILLIAM ::::::::::::::::::::::::::::::::::::::::: ACCUSED</p> <p>(BEFORE: HON. MR. JUSTICE E.K. MUHANGUZI, J; HON. LADY JUSTICE P.N. TUHAISE; J. HON. LADY JUSTICE J.F.B. KIGGUNDU, J.)</p> <p>JUDGMENT OF THE COURT Brief background:</p> <p>The fourteen accused persons, namely:_A1: SHEIKH SIRAJE KAWOOYA, A2: SHEIKH MOHAMAD YUNUSU KAMOGA, A3: SHEKH MURTA MUDDE BUKENYA, A4: SHEIKH FAHAD KALUNGI, A5: AMIR KINENE, A6: HAKIM KINENE MUSWASWA, A7: KAKANDE YUSUF alias ABDALLAH, A8: SEKAYANJA ABDUL SALAAM alias KASIMU MULUMBA, A9: SEMATIMBA ABDUL HAMID MUBIRU, A10: HAMUZA KASIRYE, A11: TWAHA SSEKITTO, A12: JJINGO RASHID, A13: MUSA ISSA MUBIRU and A14: IGA GEORGE WILLIAM were, on 17/10/2016, jointly indicted on four counts (one of terrorism, two of murder and one of attempted murder).</p> <p>In count No. 1, relating to the offence of terrorism, it was alleged in the particulars of the offence that Sheikh Siraje Kawooya, Sheikh Mohamad Kamoga, Sheikh Murta Mudde Bukenya, Sheikh Fahad Kalungi, Amir Kinene, Hakim Kinene Muswaswa, Kakande Yusuf alias Abdallah, Sekayanja Abdulsalam alias Kassim Mulumba Sematimba Abdulhamid Mubiru, Hamza Kasirye, Twaha Sekkito, Jingo Rashid, Musa Issa Mubiru and Iga George William and others still at large, between December 2013 and June 2015 in Kampala and Wakiso Districts, with intent to intimidate the public or a section of the public and for a political, religious, social, or economic aim, indiscriminately and without due regard to the safety of others or property, directly involved themselves or were complicit in the attempted or threatened murder or attack on Ssonko Najib, Bayiga Mustafah, Umar Swadiq, Ibrahim Hassan Kirya, Mahmood Kibaate, Haruna Jemba and Omulangira Kassim Nakibinge who were members in a public or private institution.</p> <p>In count No. 2, relating to the offence of murder to the prejudice of Sheikh Mustafa Bahiga, it was alleged in the particulars of the offence that Sheikh Siraje Kawooya, Sheikh Muhamad Yunus Kamoga, Sheikh Murta Mudde Bukenya, Sheikh Fahad Kalungi, Amir Kinene, Hakim Kinene Muswaswa, Kakande Yusuf alias Abdallah, Sekayanja Abdulsalam alias Kassim Mulumba, Sematimba Abdulhamid Mubiru, Hamza Kasirye, Twaha Sekkito, Jingo Rashid, Musa Issa Mubiru, Iga George William and others at large, on the 28<sup>th</sup> December, 2014 at Bwebajja in the Wakiso District, with malice aforethought unlawfully caused the death of SHEIKH MUSTAFA BAHIGA.</p> <p>In count No. 3, relating to the offence of murder to the prejudice of Sheikh Hassan Ibrahim Kirya, it was alleged in the particulars of the offence that Sheikh Siraje Kawooya, Sheikh Mohamad Yunus Kamoga, Sheikh Murta Mudde Bukenya, Sheikh Fahad Kalungi, Amir Kinene, Hakim Kinene Muswaswa, Kakande Yusuf alias Abdallah, Sekayanja Abdulsalam Alias Kassim Mulumba, Sematimba Abdulhamid Mubiru, Hamza Kasirye, Twaha Sekkito, Jingo Rashid, Musa Issa Mubiru, Iga George William and others still at large, on the 30<sup>th</sup> of June 2015, at Bweyogerere Trading Centre in the Wakiso District, with malice aforethought unlawfully caused the death of SHEIKH HASSAN IBRAHIM KIRYA.</p> <p>In count No. 4, relating to the offence of attempted murder to the prejudice of Sheikh Dr. Haruna Jemba, it was alleged in the particulars of the offence that Sheikh Siraje Kawooya, Sheikh Mohamad Yunus Kamoga, Sheikh Murta Mudde Bukenya, Sheikh Fahad Kalungi, Amir Kinene, Hakim Kinene Muswaswa, Kakande Yusuf Alias Abdallah, Sekayanja Abdulsalam alias Kassim Mulumba, Sematimba Abdulhamid Mubiru, Hamza Kasirye, Twaha Sekkito, Jingo Rashid, Musa Issa Mubiru, Iga George William and others still at large, on the 3<sup>rd</sup> January 2015, at Wattuba, Matugga in the Wakiso District attempted unlawfully to cause the death of SHEIKH DR. HARUNA JEMBA.</p> <p>Each count was separately read out and translated from English to Luganda languages for the benefit of the accused. Each accused denied the charge and court accordingly entered on record a plea of not guilty for each accused in respect of each count separately.</p> <p>Court then interviewed and swore in three assessors to act as assessors during the trial.</p> <p>Representations and Court Officials:</p> <p>The Prosecution team from the office of the Director of Public Prosecutions included:</p> <ol><li>Mr. Anguzu Lino, Principal State Attorney;</li> <li>Mr. Thomas Jatiko, Principal State Attorney;</li> <li>Ms. Rachel Bikhole, Principal State Attorney;</li> <li>Ms. Marion Ben- Bella, State Attorney.</li> </ol><p>Defence teams included:</p> <ol><li>Mr. McDosman Kabega, for Accused Nos. 5 and 6 on private brief;</li> <li>M/s. Fred Muwema, Kagoro Friday Roberts, Twaha Mayanja, Kagoya Allen and Charles Nsubuga for A1, A2, A3, A4, A7, A8, A9, A10, A11, A12, and A13 on private brief;</li> <li>Ms. Namawejje Sylivia Ebitu for A14 on State brief.</li> </ol><p>Assessors:</p> <ol><li>Ms. Muhairwe Judith</li> <li>Mr. Ddumba Ahmed</li> <li>Mr. Lubega Robert Seguya.</li> </ol><p>Court Clerks/ Interpreters:</p> <ol><li>Mr. Cornelius Kiyuba</li> <li>Ms Mukhaye Lillian</li> </ol><p>Mr. Anguzu Lino, Principal State Attorney, for the prosecution informed court and Mr. Muwema Fred, for the defence, confirmed that the prosecution and defence teams had agreed at the pre-trial proceedings on the following facts and issues which they wished to adopt at the trial, namely:</p> <ol style="list-style-type:upper-alpha"><li>Agreed Facts</li> </ol><ol><li>That the late Sheikh Mustafa Bahiga is dead.</li> <li>That the late Sheikh Mustafa Bahiga died on the 28th December, 2014 while in transit to Kibuli hospital.</li> <li>Post Mortem was done at Mulago Hospital Mortuary on the body of the deceased (Sheikh Mustafa Bahiga).</li> <li>That Sheikh Mustafa Bahiga’s death was caused unlawfully with malice aforethought.</li> <li>That Sheikh Hassan Ibrahim Kirya is dead.</li> <li>That Sheikh Hassan Ibrahim Kirya died on the 30<sup>th</sup> June, 2015.</li> <li>That Sheikh Hassan Ibrahim Kirya’s death was caused unlawfully and with malice aforethought.</li> <li>The accused persons were arrested by the police, charged and indicted to High Court for trial.</li> </ol><ol style="list-style-type:upper-alpha"><li>Agreed Issues:</li> </ol><ol><li>On count No. 1 of Terrorism contrary to Section 7 (1) and 2 (b) of the Anti-Terrorism Act, Act No. 14 of 2002:</li> </ol><ol style="list-style-type:lower-alpha"><li>Whether there was actual, attempted or threatened murder, maiming or attack on a person or group of persons in a public or private institution.</li> <li>Whether the acts in a) above were for purposes of intimidating the public or a section of the public and for a religious, political, social or economic aim.</li> <li>Whether the acts in a) above were committed indiscriminately without due regard to the safety of others or property.</li> <li>Whether the accused persons participated in the commission of the offence either by direct involvement or complicity.</li> </ol><ol><li>On count No. 2 of murder contrary to Sections 188 and 189 of the</li> </ol><p>Penal Code Act, (Cap. 120):</p> <p>a) Whether the accused persons participated in unlawfully causing the death of Sheikh Mustafa Bahiga.</p> <ol><li>On count No. 3 of murder contrary to Section 188 and 189 of the</li> </ol><p>Penal Code Act, (Cap.120):</p> <p>a) Whether the accused persons participated in unlawfully causing the death of Sheikh Ibrahim Hassan Kirya.</p> <ol><li>On count No. 4 of attempted murder contrary to Section 204 of the</li> </ol><p>Penal Code Act, (Cap.120):</p> <ol style="list-style-type:lower-alpha"><li>Whether there was an intention to cause the death of Sheikh Dr. Haruna Jjemba.</li> <li>Whether that intention was manifested by overt acts.</li> <li>Whether the accused persons participated in the commission of that offence</li> </ol><p>General Issue:</p> <p>Whether the accused persons had a common intention to commit any of the above.</p> <p>THE LAW:</p> <p>The burden and standard of proof:</p> <p>In all criminal cases, except a few statutory ones not including the offences now before court, an accused person is presumed innocent until proved or unless he/she pleads guilty. The burden of proving the charge is upon the prosecution throughout the trial to prove every essential ingredient of the offence beyond reasonable doubt and that burden never shifts to the accused. [See:</p> <ol><li>Woolmington vs. D.P.P. [1935] A.C. 462;</li> <li>Miller vs. Minister of Pensions (1947) 2 All E.R. 372 at page 373-374 per Lord Denning;</li> <li>Okethi Okale &amp; Ors. vs. Republic [1965] E.A. 555;</li> <li>Lubogo &amp; Ors. vs. Uganda [1967] E.A. 440;</li> <li>Joseph Kiiza &amp; Ors. vs. Uganda [1978] HCB 279].</li> </ol><p>THE EVIDENCE:</p> <p>To prove the four charges in the indictment the prosecution called a total of thirty- six (36) witnesses, several of whom gave very long testimonies. Three of those witnesses, by consent of prosecution and defence, were allowed to testify under pseudo names. We shall not reproduce verbatim the evidence of each witness in this judgment because of the big number of witnesses and the extensive length of the evidence of many of them. We shall, however, consider all the evidence and weigh it against the law in order to arrive at conclusive findings and holdings in this case. Suffice it, for now, to set out below a list of the witnesses and the gist of the evidence of each of them as follows:</p> <ol><li>Samuel Sasya (PW1), a 49 years old medical clinical officer who examined Mudde Bukenya, Mohamed Kamoga and Kalungi Fahad on 21/01/2015 and issued reports in exhibits P12, P13 and P15.</li> <li>No. 56710 D/C Akankwasa Anthony (PW2), a 30 years old Police Officer, who went with ASP Bwire Susan to Bwebajja Mosque and cordoned off the scene of crime;</li> <li>Kabahinda Elizabeth Sanyu (PW3), a 37 years old Medical Billing Clerk at Namulundu Medical Centre, Bwebajja who heard the deceased say: “Kamoga is this what you have decided to do? Let me die for my religion."</li> <li>Dr. Moses Byaruhanga (PW4), a 42 years old Medical Officer Pathologist, who did Postmortem examination on late Mustapha Bahiga on PF24 dated 29/12/2014 (exhibit P.4) and on late Hassan Kirya on PF24 dated 01/7/2015 (Exhibit P5).</li> <li>Asiku Denis (PW5) a 30 years old Medical Clinical Officer at Mayfair Clinic at Najjanankumbi, Entebbe Road who examined Iga George William alias Hamza on 18/8/2015 on PF24 (Exhibit P6).</li> <li>Mujahiid Mustapha Bahiga (PW6), an 18 years old student of Mbogo College School at Kawempe, son of late Mustapha Bahiga who, on 28/12/2014, was with late Mustapha Bahiga the whole day up to the shooting and heard his father state: “Kamoga onzise” in Luganda meaning “Kamoga you have killed me,” (See: Police Statement (Exhibit D1)).</li> <li>Dr. Nuwamanya Emmanuel (PW7), a 43 years old Medical Officer, based at Police Headquarters Officer at Nsambya, who examined Sekayanja Abdu Salaam Mulumba Kassim, Sematimba Abdul Hamid Mubiru, Jingo Rashid, Twaha Sekitto, Kakande Yusuf, Musa Isa Mubiru and Sheikh Siraje Kawooya all on PF24 on 18/01/2015 (See: Exhibits P.7, 8, 9,10, 11 and 13).</li> <li>Serunjogi Wilson (PW8), a 40 years old resident of Kitende, Bwebajja who witnessed 2 men on a motor cycle around 7.00p.m at the Mosque shooting at a Noah car that was parked at the mosque.</li> <li>Madrama Charles (PW9), a 50 years old Medical Officer, who examined Kinene Amir on 22/1/2015 on PF24 dated 21/1/2015 and Kinene Akim Muswaswa on 22/1/2015 [See: PF24 Exhibits P14 and 15].</li> <li>Robinah   Kirinya (PW10), a 54 years old Senior Government Analysist in Ballistics, based at the Government Analytical Laboratories at Wandegeya, who authored a report dated 09/01/2015 relating to 6 spent cartridges that were submitted by D/IP Byamugisha Fulgensia in respect of Kajjansi Police CRB 818/2014 to the laboratory for examinations [See: Exhibit P16], another report dated 22/9/2015 in respect of Bweyogerere Police Station CRB 148/2015 and a 3<sup>rd</sup> report dated 01/10/2015 relating to Kajjansi CRB 818/2014. [See: Exhibits P16, P17 and P18]. She also authored an additional report on 01/10/2015 in respect of Bweyogerere CRB 148/2015 [See: Exhibit P19].</li> <li>Dr. Muwema Emmanuel Natosh (PW11), a 28 years old Medical Officer who, on 28/12/2014 at Namulundu Health Centre IV, attended to a wounded Mustapha Bahiga but referred him to Mulago Hospital. He heard his patient state:</li> </ol><p>“Bankubye amasasi naye ngenda kufiira diini yange” (Luganda),</p> <p>“I have been shot but I am going to die for my religion” (English).</p> <ol><li>No.19426 D/Sgt. Birungi Jane Barbara (PW12), a 45 years old police officer attached to Kajjansi Police Station as Division Scenes of Crime Officer (SOCO), who, on 28/12/2014 recovered 6 spent cartridges from the scene at the mosque at Bwebajja in respect of Kajjansi CRB 818/2014 (Exhibits P20, P21 and 22) and made a sketch plan of the scene (Exhibit P23).</li> <li>No. 22638 Sgt. Obatai John (PW13), a 49 years old Police Officer of Naguru Police Barracks attached at Bweyogerere Police Station as Political</li> </ol><p>Commissar who, on 30/6/2015, picked both Hassan Ibrahim Kirya’s body and another body from Bweyogerere at the Kampala/Jinja Road fly­over and took them to Mulago Hospital.</p> <ol><li>Afuwa Namugenyi (PW14), a 55 years old market vendor at Bweyogerere Taawo who, on 30/6/2015 was trying to sell fruits to Sheikh Hassan Kirya at about 10.00pm when suddenly there was a lot of gun shots that killed the late Hassan Kirya.</li> <li>Haruna Jemba Abdul Hamid Katungulu (PW15), a 60 years old teacher of Religion and Peace Studies at Makerere University, one of the lead preachers originally at the Nakasero Mosque and Executive Committee Member with Muhamad Yunus Kamoga, late Abdul Hakim Sekimpi, late Kirya, late Bahiga and others numbering to 20. Their organization split into 2 rival groups. On 03/01/2015 his home at Wattuba, Mattuga, Wakiso District was attacked by unknown gun men between 3.30am and 4.00am in the night.</li> <li>No. 40622 D/C Wafana Rogers (PW16), a 32 years old policeman attached to Wandegeya Police Station, who visited the scene at Jokolera village with ASP Buyondo, D/IP Kusimirwa Charles and other police personnel and collected 8 cartridges and drew Sketch Plan (Exhibit P24).</li> <li>No. 39996 D/CPL Lule Moses (PW17), a 33 years old police officer of Natete police Barracks, who together with O/C CID, D/AIP Kusingura Charles, on 03/01/2015 went to the home of Sheikh Haruna Jemba at Wattuba around 10.45am. He, as SOCO, cordoned off and protected the scene recovered 5 empty cartridges, one SMG serial No.48009311 from a policeman, one projectile and took photographs of the exhibits at the home and made an exhibit slip (Exhibit P25). Photographs are exhibit P26, SOCO report is Exhibit P27.</li> <li>D/ASP Kusingura Katsimbura Charles (PW18), a 47 years old Police officer who, on 03/01/2015, went to Wattuba Village at Haji Jemba’s residence and instructed PW17 as SOCO of that scene. He took over from PW17 all exhibits at Mattuga Police Station on PF17A and took them to the Government Analytical Laboratory for examination (Exhibit P28).</li> <li>Mubiru Ben (PW19), a 28 years old Health Practitioner of Market Street Medical Clinic who, on 01/7/2015, examined Kenneth Rono on PF3 (Exhibit P.29).</li> <li>Kenneth Rono (PW20), a 33 years old Trailer Turn Boy who, in the night of 30/6/2015, was injured when gunmen shot at the Motor Vehicle he was travelling in near Mukono Police Station and the glasses were shuttered and injured his left eye.</li> <li>Semakula Isma (PW21), a 20 years old, chicken Roaster at Bweyogerere Fly</li> </ol><p>over and Trading Centre who, on 30/6/2015, at about 10.00pm was shot in the leg in the midst of heavy gun fire at the fly over.</p> <ol><li>Haji Yasin Kakomo (PW22), a 54 years old trader of Kyazanga and Masaka in Lwengo and Masaka Districts who was part of the Tabliq Sect with the late Mustapha Bahiga and the late Hassan Kirya since 1988 and 1994 respectively and Yunus Kamoga since 1983. He witnessed and attempted to mediate the wrangles involving the said leaders of the Tabliq Sect. that Kamoga told him in reference to late Bahiga’s group:</li> </ol><p>“....... I was tired and not going to accept anything that was going to</p> <p>divide Muslims............... even if it meant killing I can kill, those are joking</p> <p>and have never killed but for me even if it is during daylight I can kill".</p> <ol><li>SSP Odong Mark Paul (PW23), a 36 years old police officer who, on 12/01/2015, recorded a statement from the late Sheikh Hassan Kirya on instructions of D/SSP Ogwang Julius, deceased.</li> <li>No. 58831 D/C Mutono Geoffrey (PW24), a 30 years old police officer who, on 30/6/2015 went with a team to Bweyogerere Crime Scene where late Hassan Kirya had been shot, cordoned off the scene, took photographs, recovered bullet casings and projectiles, labeled and packaged them and handed them over to D/C Agwang Winnie, the evidence custodian at the scene.</li> <li>Zeena Mugubil (PW25), a 42 years old resident of Jinja Plot 11/3 Main Street, retail shop operator who, sometime in June 2015, rented out shop premises for 3 months at Ugx. 300,000/= per month and also residential premises at Mafubira 4 miles from Jinja town at Ugx. 150,000/= per month for 4 months (Ugx. 600,000/=) which they paid in advance on top of the shop premises for 3 months at Ugx. 300,000/= per month (Ugx. 900,000). Those tenants were Akim and Amir whom she identified in Court.</li> <li>Semwanga Lutaaya Badru (PW26), a 58 years old employee of UBC as News Anchor and translator/Interpreter from English into Luganda. In June 2016 he translated 2 fliers that had photos of people on them from Luganda into English (Exhibit P35 and P36).</li> <li>D/ASP Muramira Patrick (PW27), a 40 years old Police Officer who, in December 2014 acted as the arresting officer on instructions of SSP Agasirwe Nixon on 29/12/2014 to arrest seven suspects in connection with the killing of Moslem Clerics in Kampala. He arrested them and one of them Amir Kinene allegedly, on 09/01/2015 mentioned his accomplices, who were also subsequently arrested on various dates and from various locations.</li> <li>“A” (pseudonym) (PW28), a 50 years old businessman of Makindye, Kampala who identified A1, A2, A3, A4 A7, A9, A12 and A13 in Court as fellow Muslims he knew for various periods since the 1990s. He knew late Mustapha Bahiga since 1994 till his death in 2014 and Hassan Kirya since 1994 till death in 2015.</li> <li>“B” (Pseudonym) (PW29), a 30 years old businessman of Kibuye, Makindye Kampala who towards end of 2011 together with several of the accused and others numbering to 40 or more attended several meetings at Sheikh Kawooya’s home along Gayaza road with the objectives of changing the leadership of this organization “Jamuhiyata Daawa Asalafiya”. He stated that Sheikh Kawooya said:</li> </ol><ol><li>“Sheikh Bahiga is like a snake in the saucepan and if you didn’t kill it you cannot eat.”</li> <li>“You creatures, you have forgotten that we are the ones who hold your lives, should we release these young ones?”</li> </ol><p>Further that Kawoya told him on 25/4/2012:</p> <p>“Those are just talking, for us we have guns here."</p> <p>“Those people should not joke with us."</p> <ol><li>“C” (Pseudonym) (PW30), a 34 years old businessman resident of Nansana, near Kawempe Division who stated that he was acquainted with the leadership of the Moslem sect at the William Street Mosque since 2003 onwards. He knew about the disagreements and breakup leading to division into two groups led by a) Kamoga and b) Jemba in 2011. He was on Kamoga’s side and mobilized with Murta Bukenya to protect Kamoga’s leadership against any attempt to take over leadership from Kamoga.</li> </ol><p>Following the shooting dead of Sheikh Abdul Karim Sentamu at William Street Mosque Kamoga stated at a meeting:</p> <p>“What I told ---------- would stop us from reaching our target has just</p> <p>started happening.”</p> <p>Kamoga also stated: “That only four people were remaining hindering our way, namely:</p> <ol><li>Mustapha Bahiga</li> <li>Hassan Ibrahim Kirya</li> <li>Mohammed Kiggundu, a Major in UPDF.</li> <li>Umar Sudik Ndaula, Muhammed Kibaate, Haji Jamil Kiddu, and others to be identified later)”.</li> </ol><p>Further that in the year 2014 at a meeting at Sheikh Kawooya’s residence at Gayaza Road, attended by: Murta Bukenya, Fahad Kalungi, Hamidu Mbaziira, Sheikh Kawooya and others</p> <ol><li>D/AIP Ntende Godfrey (PW31), a 35 years old Police Officer attached to Counter-Terrorism and Intelligence Investigation.</li> </ol><p>On 28/7/2015 he arrested Hamza Jafari Kasirye at his home at Ddegeya, Mbirizi in Lwengo District for the reason that Kasirye used his phone no.0703-427-176 to send threatening messages to Najib Ssonko. He conducted a search, recovered some exhibits and made a search certificate.</p> <ol><li>D/Sgt. Kamuntu Herbert (PW32), a 33 years old Police Officer who, on 09/01/2015, arrested Sematimba Abdul Hamid from Owino Market and took him to CPS, Kampala where he handed him over to SSP Ogweng.</li> <li>D/SSP Kanalo Stephen (PW33), a 59 years old police officer who, on 29/01/2016, arrested Isa Musa Mubiru from Entebbe International Airport, told him the reason for arrest and escorted him to Kireka SID where he handed him to the Director, CID Musana who instructed him to take him to Nalufenya police station.</li> <li>Kabera Francis (PW34), a 38 years old Security Manager, Airtel Uganda Ltd who, on 02/02/2016 issued a call Data Record (CDR) document in respect of No. 256 753 742 181 of 4 pages (Exhibit P37).</li> <li>D/AIP Mpamizo Kanyomozi (PW35), a 48 years old Police Officer who, on 8/01/2015, was instructed to join the team of investigators of the murders of Muslim Clerics. On 11/01/2015 Amir Kinene, a suspect, led that team to his rented house at Mafubira in Jinja where 2 others, Muswaswa and Muzafari were found and arrested. A search was conducted at the house and a certificate was made (Exhibit P38). On 12/08/2015 he went to CMI Headquarters at Mbuya and re-arrested Iga George William and made a statement dated 15/3/2015 (exhibit D7).</li> <li>D/IP Byamugisha Fulgence (PW36), a 44 years Police Officer who, on 31/12/2014 collected a Post Mortem Report, relating to death of Sheikh Mustapha Bahiga, from Mulago Hospital. He interviewed Sheikh Bahiga’s family members, various witnesses, including the Sheikh’s 2<sup>nd</sup> widow, the sister Mbabazi Zahuya who gave him a flier containing names of Sheikh Kibaate, Sheikh Kirya, etc. While searching the home of Abdul Kassim Sekayanja, 3 people travelling in a Motor Vehicle UAN 460T Toyota Ipsum, Siraji Kawooya, Sekito Twaha and Rashid Jingo, confronted them as brothers to Abdul Sekayanja and were arrested and detained at Katwe police station on 06/01/2015. He made a statement dated 29/02/2016 (Exhibit D8).</li> </ol><p>At the close of the evidence for the prosecution court ruled that prosecution had</p> <p>established a prima facie case against the accused on all four counts of the</p> <p>indictment and therefore informed the accused of the options available to them under the law relating to their defence. In turn, the accused persons elected to exercise their constitutional right to not offer any defence.</p> <p>In the circumstances, court had to rely entirely on prosecution evidence to decide all issues in this case.</p> <p>REVIEW OF THE EVIDENCE:</p> <p>The offences in counts Nos. 2, 3 and 4 are components of the offence in count No.1 of the indictment under consideration in this case. For this reason, we deemed it logical and expedient to resolve, firstly count No. 2, secondly No. 3, thirdly count No.4 and lastly count No. 1.</p> <p>COUNT NO. 2: Murder contrary to sections 188 and 189 of the Penal Code Act, (Cap. 120) in relation to the late Sheikh Mustafa Bahiga.</p> <ol style="list-style-type:lower-alpha"><li>The offence of Murder, contrary to sections 188 and 189 of the Penal Code Act, (Cap. 120), which is the subject of counts Nos. 2 and 3 of the indictment has four essential ingredients all of which the prosecution has to prove beyond reasonable doubt. Even when the defence does not contest or concedes to any one or more of the above ingredients as having been sufficiently proved the court has the duty to evaluate the evidence and make a finding that such ingredient has or has not been so proved (Mawanda Edward Vs. Uganda, SC. Crim. Appeal No. 4/1999, unreported).</li> </ol><p>According to Section 188 of the Penal Code Act, (Cap.120):</p> <p>“Any person who of malice aforethought causes the death of another person by an unlawful act or omission commits murder. ”</p> <p>Therefore, the four ingredients of the offence of murder, as specified in the case of Uganda Vs Kassim Obura [1981] HCB 9 are, namely:</p> <ol><li>Death of the deceased named in the indictment;</li> <li>Death having been caused unlawfully (Gusambizi s/o Wesonga Vs. R.</li> </ol><ol><li>15 EACA 65);</li> </ol><ol><li>Malice aforethought having prompted the death (R. Vs. Tubere [1945] 12 EACA 63);</li> <li>Participation of the accused (Bogere Moses &amp; Anor. Vs. Uganda, SC. Crim. Appeal No. 1/1997, ISCD (CRIM) 1996-2000)</li> </ol><p>On this count, the prosecution relied, firstly, on the agreed facts above, namely;</p> <ol><li>That the late Sheikh Mustafa Bahiga is dead.</li> <li>That the late Sheikh Mustafa Bahiga died on the 28<sup>th</sup> December, 2014 while in transit to Kibuli Hospital;</li> <li>Post mortem was done at Mulago Hospital Mortuary on the body of the deceased (Sheikh Mustafa Bahiga); and</li> <li>That Sheikh Mustafa Bahiga’s death was caused unlawfully with malice aforethought.</li> </ol><p>Secondly, prosecution relied on the evidence of: Mujahid Mustafa Bahiga (PW6) who witnessed the shooting of the deceased at the mosque at Bwebajja; Dr. Muwema Emmanuel Natosh (PW11) Who Attended to the wounded Mustafa Bahiga at Namulundu Health Centre IV on the28/12/2014 and also referred him to Mulago Hospital but heard the patient state:</p> <p>“Bankubye amasasi naye ngenda kufiira ediini yange” (Luganda) meaning:</p> <p>“I have been shot but I am going to die for my religion”;</p> <p>Kabahinda Elizabeth Sanyu (PW3) a medical billing clerk at Namulundu Medical Centre, Bwebajja, who testified that she heard the deceased state:</p> <p>"Kamoga, is this what you have decided to do? Let me die for my religion" and Dr. Moses Byaruhanga (PW4), a Medical Officer and Pathologist who, on 29/12/2014 performed a post mortem examination on the body of the late Mustafa Bahiga and issued a report (Exhibit P5) dated 29/12/2014. He found gunshot wounds on the chest, lip, waist, hand, rib, right lung, liver, diaphragm, colon and certified cause of death as gunshot injuries and described them as “close gunshot injuries”.</p> <p>On the basis of the above evidence we are satisfied and find and hold that the prosecution proved beyond reasonable doubt the first three essential ingredients of the offence of murder, namely:</p> <ol><li>That Sheikh Mustafa Bahiga died (Exhibit P5);</li> <li>That the death of Sheikh Mustafa Bahiga was unlawfully caused because it was neither accidental nor lawfully authorized, such as in execution of a death sentence (Gusambizi s/o Wesonga V. R supra);</li> <li>That the shooting at close range and injuring the chest and vital internal organs such as the Lung, liver, colon and diaphragm was definitely actuated by malice aforethought (R. vs. Tubere (1945) 12 EACA 68, supra).</li> </ol><p>However, we are satisfied and find and hold that no single prosecution witness identified either the assailants or recovered the killer weapon at the time and at the scene of the crime. Consequently, the prosecution did not place any of the accused persons at the scene or time of the crime (Bogere Moses &amp; Anor. vs Uganda, SC. Crim. App. No. 1/1997, supra).</p> <p>Instead, other evidence on record shows that two un-identified assailants were seen at the scene at the time of the shooting and immediately after the shooting they jumped on a motor cycle and rode away. The assailants were never arrested and the killer gun and the motor cycle were never recovered. If and how any of the fourteen accused participated in causing the death of Mustafa Bahiga appears to us not clear.</p> <p>Consequently, substantial doubt was cast in the prosecution case, particularly regarding the fourth essential ingredient of participation of any of the accused persons in commission of the offence in count No.2 of the indictment.</p> <p>Nevertheless, the prosecution relied exclusively on circumstantial evidence to prove the fourth essential ingredient in count No. 2, namely: participation of the accused in commission of the offence, which we shall shortly revert to as we review the evidence relating to counts Nos. 3 and 4.</p> <p>COUNT NO. 3: Murder of Sheikh Hassan Ibrahim Kirya contrary to Sections 188 and 189 of the Penal Code Act, (Cap.120).</p> <p>Regarding the murder of the late Sheikh Hassan Ibrahim Kirya, prosecution relied, firstly, on other agreed facts also earlier outlined above, namely:</p> <ol><li>That Sheikh Hassan Ibrahim Kirya is dead.</li> <li>That Sheikh Hassan Ibrahim Kirya died on the 30<sup>th</sup> June 2015;</li> <li>That Sheikh Hassan Ibrahim Kirya’s death was caused unlawfully and with malice aforethought.</li> <li>The accused persons were arrested by police, charged and indicted to High Court for trial in respect of the deaths of both Sheikhs Bahiga and Kirya.</li> </ol><p>In addition, prosecution also adduced evidence of Afuwa Namugenyi (PW14), a 55 years old Market Vendor of Bweyogerere Taawo, who on 30/6/2015, witnessed a lot of gunshots that killed the late Sheikh Hassan Kirya ; No. 22638 sgt. Obatai John (PW13), a 39 years old Police Officer who picked the body of the late Hassan Ibrahim Kirya and another one from Bweyogerere at Kampala/Jinja Road fly-over and took them to Mulago Hospital as well as Dr. Moses Byaruhanga (PW4), a Medical Officer and Pathologist who performed a Post-Mortem examination on the body of the late Hassan Ibrahim Kirya on 01/7/2015 and issued a report (Exhibit P5) dated 01/07/2015. In that report the pathologist showed the followings findings:</p> <ol><li>Gunshot wounds on the back, anterior chest, thigh, right buttock, waist, left pectoral muscles, ribs, vertebral column, thoracic aorta, heart, roots of all the great vessels of the heart, left diaphragm and stomach;</li> <li>Fractured lateral “barder” of T.12, Hemorrhagic froth in the airway, pale abdominal organs, heamatoma in the muscles of the right thigh with lacerated femoral blood vessels.</li> </ol><p>He certified the cause of death to be multiple gunshot injuries.</p> <p>Upon careful consideration of the above evidence we are satisfied and we find and hold that the prosecution proved beyond reasonable doubt the first three essential ingredients of murder, namely:</p> <ol><li>The death of Sheikh Hassan Ibrahim Kirya on 30/6/2015 (Exhibit P5);</li> <li>That Sheikh Hassan Ibrahim Kirya’s death was caused unlawfully as his shooting was neither accidental nor authorized by law, such as in execution of a death sentence imposed by a court of law (Gusambizi s/o Wesonga, supra);</li> <li>The multiple gunshot wounds on the chest and other parts of the body that injured vital organs of the body indicated malice aforethought on the part of the assailants (R vs. Tubere, supra).</li> </ol><p>However, as the assailants and the killer guns were neither identified nor recovered at the time and scene of the crime by any of the prosecution witnesses, we were unable to find any direct evidence placing any of the accused persons at the time and scene of the crime (Bogere Moses &amp; Anor. Vs. Uganda, supra).</p> <p>The circumstances surrounding this death on 30/6/2015 were similar to those surrounding the death of Sheikh Mustafa Bahiga on 28/12/2014 in that prosecution witnesses only saw and heard un-identified assailants shooting their victims and immediately after the shooting the assailants rode away on motor cycles. If and how any of the fourteen accused participated in the murder of Hassan Ibrahim Kirya remained unclear to us.</p> <p>That, in our view, is a source of substantial doubt in the prosecution case on count No. 3 of the indictment.</p> <p>COUNT NO. 4: Attempted Murder Contrary to Sections 204 (a) of the Penal Code Act in relation to Dr. Haruna Jjemba.</p> <p>In relation to this count of the indictment, the prosecution had the burden of proving beyond reasonable doubt three essential Ingredients, namely:</p> <ol><li>That there was established an intention to cause the death of Dr. Haruna Jjemba;</li> <li>That the intention was manifested in overt acts;</li> <li>That the accused persons directly or indirectly participated in the commission of that offence.</li> </ol><p>That burden remained on the prosecution and did not shift to the accused throughout the trial.</p> <p>To discharge that burden, especially in relation to the fourth essential ingredient regarding participation of the accused in the commission of the offence, the prosecution relied, exclusively, on circumstantial evidence.</p> <p>In a case depending exclusively upon circumstantial evidence, the court must find, before deciding on conviction that inculpatory facts were incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt, as stated in the case of R vs. Kipkering Arap Koske &amp; Anor.</p> <ol><li>16 EAC135. That statement was adopted with approval in Simon Musoke vs. R [1958] E.A. 715. The same statement was reaffirmed by the Supreme Court of Uganda in the case of Mureeba Janet &amp; Others vs. Uganda, SCCA No. 13 of 2003.</li> </ol><p>While dealing with circumstantial evidence the prosecution made extensive submissions detailing various specific pieces of evidence relating to dying declarations, grudges between the accused and the victims, Previous Threats, Fliers, Planning Meetings, Peculiar circumstances of the killings, Telephone records, and Conduct of Accused Persons. The effort of the prosecution was aiming at proving participation of the accused persons in the commission of the offences in the indictment under consideration. We shall endeavour to analyse that evidence now as well as when dealing with count no.1 relating to terrorism.</p> <ol><li>Dying Declarations:</li> </ol><p>We have carefully considered the aspect of dying declarations with particular reference to the evidence of PW4, PW6 and PW11 concerning the alleged words spoken by the late Mustafa Bahiga in his dying moments. More detail on this evidence is stated in the section concerning count no.1 relating terrorism. Suffice it to state now that we find and hold that there were inconsistencies and contradictions in that evidence. There was no corroborating evidence to support it also. For that reason we are unable to accept that evidence as a dying declaration.</p> <p>We also carefully considered the evidence of PW23 and exhibit P30. The evidence of PW23 was simply that he recorded a statement from Hassan Ibrahim Kirya. The contents of that statement (P30) were not his evidence and the maker of that statement was not able to testify and the veracity of the contents of that exhibit could not be tested through cross examination. Therefore, we find and hold that exhibit P30 did not qualify as dying a declaration and accordingly reject it.</p> <ol><li>Grudges between the accused and the victims:</li> </ol><p>Prosecution adduced evidence of PW15, PW22, PW28, PW29 and PW30 who testified to the effect that A1, A2, A3 and others were having serious wrangles with Ssonko Najib, Bahiga Mustapha, Umar Swiq, Ibrahim Hassan Kirya, Mahamood Kibaate, Haruna Jemba and Omulangira Nakibinge from as far back as 2012 and these escalated between October and December 2014. Mustapha Bahiga and Hassan Ibrahim Kirya appeared to be the primary targets of A1, A2, and A3 in this disagreement. This suggests motive on the part of the accused. Motive alone, in our view, may not prove anything.</p> <ol><li>Previous Threats:</li> </ol><p>Prosecution adduced evidence of PW15, PW22, PW28, PW29 and PW30 who testified about the threats issued by A2 to the victims and deceased persons. PW15 testified that at the height of the wrangles, an anonymous person called him from William Street and told him that his neck was ripe for slaughtering. He also told the court that at a meeting organized by Hajji Moses Kigongo, Mustapha Bahiga informed the meeting that he was no longer willing to work with A2 because this man is planning to kill us’. The statements made by A2 to PW22 to the effect that Mustapha Bahiga, Hassan Kirya, Mohammed Kiggunu and Swadiq Ndaula were the strong ones on the other side and the threat that he would kill them is on record. A2 told PW22:</p> <p>even if it means killing them I will kill them .... those men are joking they have never killed but for me even if it is in broad day light I can kill".</p> <p>A2 said this while thumping his chest. PW29 testified that A2 uttered several threats to the deceased persons. Among other things A2 said:</p> <p>‘Kirya is joking he can’t survive.................. those people are joking... we have guns’.</p> <ol><li>Fliers:</li> </ol><p>Prosecution tendered evidence regarding the printing and distribution of fliers with defamatory messages against the victims and the association of the fliers to A1, A2, A3, A4, A7, A11 and A12. This was in the testimony of PW27, PW28, PW30 and PW36. PW30 particularly testified that it was agreed at one of their meetings at A1’s home that the names of the six victims should be tarnished in all ways. A team was appointed to achieve this. PW30 further testified that A2 was the invisible hand behind those fliers. Counsel for the prosecution submitted that for the accused persons to take the time and resources to print these fliers and distribute them at the mosques means only one thing: that they were not only determined to and capable of implementing their plans and threats to eliminate the victims, they had in fact started to implement their plans.</p> <ol><li>Planning Meetings:</li> </ol><p>Prosecution adduced evidence of PW29 and PW30 regarding meetings organized at the homes of A1, A2, A3 and A4 to discuss the elimination of the victims. The suggestion to kill the deceased, the procurement of young men to train in handling guns, the attempt to find shooters, the recruitment of former rebels, the promise to eliminate the deceased using guns, procurement of motorcycles and riders to execute the mission to kill the deceased persons were all hatched and discussed at these meetings. It was at one of these meetings that A2 stated that it was now time for ‘bullet to the flesh’ for the victims. PW30 further testified about the prominent role played by A.8 in planning the killings. He was in charge of training in Nakasero mosque and identifying the people to execute the mission.</p> <p>There is further evidence of PW30 regarding a conversation he had with A2, A3 and A8 at A2’s office at Nakasero Mosque a few days before the murder of Mustapha Bahiga. PW30 testified that at this meeting A2, A3 and A8 warned him not to be shocked if something happened that weekend. Mustapha Bahiga was shot dead that Sunday. Prosecution submitted that this was further evidence that the accused persons were not only aware of what happened; they were the ones who planned it.</p> <ol><li>Peculiar circumstances of the Murders:</li> </ol><p>Prosecution adduced evidence on the mode of killings. The mode of execution of killings is further corroboration of the dying declaration. PW30 testified that in their various planning meetings, the accused persons agreed to eliminate the victims by ‘bullet to flesh’.</p> <p>Further, PW22 testified that A2 had threatened to kill the victims. The pictures and names of Hassan Ibrahim Kirya, Mustapha Bahiga and PW15 were all on the three fliers that were circulated and tendered as P41, P42 and P43. All 3 were attacked using guns. The assailants at Bwebajja Mosque and Bweyogerere were both riding motorcycles and fled on the same. The evidence of PW10, the senior Government Ballistics Analyst which comprised in P18 and P19 is to the effect that the firearm used in the attack on Hassan Ibrahim Kirya and Musapha Bahiga was the same type. These attacks apparently aimed to kill each of the victims and not for any other purpose. Prosecution also submitted that the assailants did not rob anything from their victims and it is clear from the evidence that their sole purpose was to kill their victims. Further that there was no other evidence to indicate to court that all the deceased persons and other victims had any other serious conflict with any other person other than the group led by A1 and A2 at the time of these attacks.</p> <p>In our view this piece of evidence does not seem to advance any further proof of participation of any of the accused person in the death of Mustapha Bahiga or Hassan Kirya or the attack at Haruna Jjemba’s home.</p> <ol><li>Telephone records:</li> </ol><p>Prosecution adduced evidence of telephone records tendered in court further connects the accused persons to the offence. PW30 testified that at their meetings, as they finalized plans to eliminate the victims, A8 was desperately looking for a one Amir Kinene [A5] and stated that Amir Kinene was the only one missing for the mission to succeed and this was immediately before the death of Bahiga Mustapha.</p> <p>PW35 testified that upon arrest, A5 led him to search his father’s house at Keti Farao zone in Kawempe Division and among others he recovered sim pack for telephone number 0753742181. This was recorded on the search certificate tendered as P38. PW36 testified that the late SSP Ogweng Julius handed over to him P45 a Nokia phone model RM9640 as property recovered from A5 upon arrest. The serial number IMEI 351723066087935 of P45 shows that telephone number 0753742181 was the very number used in this phone on the 28/12/2014 at 8pm. PW34 testified that the telephone number in question is registered with Airtel network in the name of Kinene Tebukoza. He further explained that the last digit of an IMEI number is always recorded on a Call Data Recovered [CDR] as 0 because it is inconsequential as the first 14 are sufficient to uniquely identify a handset. The CDR for this telephone number 0753742181 tendered as P.37 shows the telephone number was operating in an area scientifically located at the scene of murder of Bahiga Mustapha on the 28<sup>th</sup> December 2014 between 7pm and 8pm, at approximate time when Mustapha Bahiga was shot. It shows that telephone number 0753742181 was making communication using base masts of Namasuba, Najjanakumbi and Ndeeba, places geographically proximate to the scene of murder. It further shows that immediately after the murder, the holder of the number left towards Jinja District as subsequent calls were recorded as using base masts of Kireka, Ryder Hotel and Bulyasi; an indication the holder of the number was moving in that direction.</p> <p>This should be considered in light of evidence of PW25 who testified that A5 and A6 rented a house from her located at Mafubira Village in Jinja on the 27/12/2014 just one day before the murder of Mustapha Bahiga. It was from this house that A6 was arrested after A5 identified him to PW27 as his accomplice and led PW27 and team to arrest them in Jinja.</p> <p>In the case of Akbar Hussein Godi v Uganda Cr. App. No.03 of 2013 the</p> <p>Supreme Court observed that evidence of telephone print outs is significant even where the exact messages sent or words are not captured. The print outs were instrumental on the conviction of the appellant. In Uganda v Kato Kajubi, Cr. App.</p> <p>No. 39 of 2010 (CA), one of the pieces of evidence considered as corroboration was evidence of telephone communications. This evidence was used to connect the accused to the scene of crime.</p> <p>Learned counsel for the prosecution argued that the above circumstantial evidence connects A5 and A6 to the offences indicted. Further, that it can’t be by pure coincidence that A8 was looking for A5 immediately before the murder of Mustapha Bahiga, and A5 is placed at the scene of crime at exactly the relevant time when the offence was committed, and immediately after the offence he is shown moving away from the scene of crime towards Jinja. And there is evidence that he only secured a residence in Jinja a day before the offence was committed. Learned counsel submitted that this was in preparation for the offence.</p> <p>The inevitable question, at this point is this, who is Kinene Tebukoza and is that person the same as Amir Kinene (A5) or Hakim Kinene Muswaswa (A6). That question was not clarified, and as such, casts doubt about the submissions relating to any participation of A5 and A6 in commission of the offences in counts Nos. 2,</p> <ol><li>or 4 of the indictment.</li> </ol><ol><li>Conduct of Accused Persons.</li> </ol><p>Prosecution made reference to the conduct of A2, A6 and A11. PW30 testified that after the death of Bahiga Mustapha, when PW30 confronted A2 and congratulated him for succeeding in the murder, A2 retorted that he knew of this. PW36 on the other hand called A11 and summoned him to come to police. A11 instead switched off all his known telephone numbers and fled to the village in Lwengo District where he was arrested from by PW31.</p> <p>PW27 testified to court about the circumstances under which they came to arrest A6. He told court that A6 refused to open the door despite repeated calls for him to do so by A5 who was his brother and the witness who clearly introduced his team as police officers. The conduct of A6 upon being requested to open the door by A5 and PW27 is clear evidence of conduct of a guilty mind. Final;y according to prosecution, this was conduct inconsistent with the innocence of the accused persons.</p> <p>We do not find much significance in the above conduct of the accused to link them to participation in commission of the offence they are indicted for.</p> <ol><li>Contradictions/ inconsistencies:</li> </ol><p>In criminal trials, inconsistencies in evidence often arise. They may be minor or major. Minor ones unless they point to deliberate untruthfulness can be ignored or overlooked. Major ones are those considered to be going to the root of the matter and pointing to deliberate untruthfulness. They may result in evidence being rejected. This is the reason why we rejected the evidence of dying declarations.</p> <p>Haruna Jemba Abdul Hamid Katungulu (PW15), a 60 years old teacher of Religion and Peace Studies at Makerere University, testified that he was one of the lead preachers originally at the Nakasero Mosque and member of the Executive Committee together with Muhamad Yunus Kamoga, late Abdul Hakim Sekimpi, late Kirya, late Bahiga and others numbering up to 20. That their organization originally known as the “Tabliq Movement” later became known as “Jamia Daawa Salafiya" and again broke up into two (2) rival groups.</p> <p>One group was headed by Kirya and included Bahiga, Najib Ssonko, Umar Sudiq Ndaula, Haruna Jemba and other executive committee members. The other group was head by Kamoga, and included his brother Murtaba Bukenya and others newly recruited. That there was rivalry between the two groups. He saw three (3) leaflets on which individuals were listed as being dangerous to the community (Islam). One list had names of the late Bahiga, the late Kirya and Najib Ssonko.</p> <p>Another list had the names of six (6) persons, namely:</p> <ol><li>Bahiga</li> <li>Kirya</li> <li>Mahamood Kibaate</li> <li>Najib Ssonko</li> <li>Umar Sudiq Ndaula</li> <li>Haruna Jemba</li> </ol><p>The third list had the names of six (6) persons after the death of Bahiga, namely:-</p> <table border="0" cellpadding="0" cellspacing="0"><tbody><tr><td style="height:25px; width:19px"> <p>1.</p> </td> <td style="height:25px; width:159px"> <p>Kirya</p> </td> </tr><tr><td style="height:28px; width:19px"> <p>2.</p> </td> <td style="height:28px; width:159px"> <p>Mahamood Kibaate</p> </td> </tr><tr><td style="height:31px; width:19px"> <p>3.</p> </td> <td style="height:31px; width:159px"> <p>Najib Ssonko</p> </td> </tr><tr><td style="height:29px; width:19px"> <p>4.</p> </td> <td style="height:29px; width:159px"> <p>Umar Sudiq Ndaula</p> </td> </tr><tr><td style="height:29px; width:19px"> <p>5.</p> </td> <td style="height:29px; width:159px"> <p>Haruna Jemba</p> </td> </tr><tr><td style="height:27px; width:19px"> <p>6.</p> </td> <td style="height:27px; width:159px"> <p>Kassim Nakibinge.</p> </td> </tr></tbody></table><p> </p> <p>That he saw the first list around the middle of 2014, the second list after his nomination as leader on 27/11/2014 and the third (3<sup>rd</sup>)one after the death of Bahiga. That he did not know the origin of the fliers (lists). That against his name, on the 3<sup>rd</sup> list/flier, were written the words to the effect that the Amir of the disabled stole wealth and money supposed to be gifts for Koramic competition in 2004 and destroyed the school at Kabigi and other words to the effect that “I built my own school at Wattuba”. Further that he received a telephone call saying his neck was ripe for cutting but in cross-examination by defense counsel this witness stated that he did not know or identify who attacked his home at Mattuga or who sent him a telephone call saying his neck was ripe for cutting or if any of the accused persons participated in the killings of Bahiga, Kirya or any other Muslim Sheikh or in the attack at his home at Mattuga on 30/01/2015;</p> <p>No. 40622 D/cpl. Wafana Rogers (PW16), No. 39996 D/cpl. Lule Moses (PW17) as well as D/ASP Kusingura Katsimbura Charles (PW.18) all visited the scene at the residence of PW15 at Wattuba Village. PW16 collected eight (8) cartridges from the scene and drew a Sketch Plan (Exhibit P24). PW17, as Scene of Crime Officer (SOCO) cordoned off and protected the scene, recovered five (5) empty cartridges, one SMG (gun) serial No. 48009311 from the policeman who was guarding that residence, one projectile, made an exhibit slip (Exhibit P25), (Exhibit P26) and made a SOCO Report (Exhibit P27). PW18 took over the exhibits from PW17 at the scene and delivered them at Mattuga Police Station on PF17A and later took them to the Government Analytical Laboratory for examination (Exhibit P28);</p> <p>Haji Yasin Kakomo (PW22), a 54 years old trader of Kyazanga and Masaka testified that he was part of the Tabliq Sect. That following divisions into two groups and verbal and other exchanges in mosques and elsewhere I attempted to mediate between the group headed by. A2 and the one headed by the late Mustapha Bahiga. I held meetings with A2 who was the Amir of the mosque at that time. At one such a meeting, he told me he was tired and was not going to accept anything that was going to divide the Muslims and that even if it meant killing he would kill. And that “those were joking and have never killed but for me even if it’s during daylight, I can kill. ” He said that while thumbing his chest. On another occasion A2 told me the difficult people who wanted to remove him from leadership included Hassan Kirya, Mustapha Bahiga, Ahmad Kiggundu and Sudiq Ndawula.</p> <p>That while attending a seminar at Masaka in November 2014, A3 read out the names of people who were nolonger wanted in their group namely 1. Mustapha Bahiga, 2. Sudiq Ndawula, 3. Muhamood Kibaate, 4. Haruna Jjemba, 5. Hasan Kirya and Najib Ssonko. There was a list which he distributed to all those present at the seminar that list had the names and pictures of the six people named above. That A2 was present when that list was being distributed by A3. That out of the four people, A1 had mentioned to me as the ones who wanted A2 to be removed from leadership only one of them namely Sudiq Ndawula is still alive, Muhamad Kiggundu having died about two weeks prior to this witnesses’ testimony in this case. In cross -examination, this witness said that A3 did not say that any of the six people should be killed that they should not be allowed in our mosques. Further when asked to repeat what A2 had told the witness, he stated in “even if it means killing or shading blood, I can do it because I have ever done it.” That the statement above was made by A1 at his office at Nakasero in the presence of only this witness and in reference to the four people named by A1 earlier. The witness stated that A2 never threatened him and never sent any messages to him. Finally he stated that he had no evidence that any of the accused persons were never involved in acts of terrorism.</p> <p>PW23 (SSP Odongo Mark Paul), a 36 years old police officer attached to SIU at Kireka testified that on 12<sup>th</sup>January, 2015 he recorded a statement from Sheikh Hassan Kirya (PE30) in which the said Sheikh Kirya complained that a threatening (SMS) message had been sent to him from telephone number 0782344324 written in Luganda language from an unknown person. In cross examination, the witness said that the late Kirya refused to divulge more information to him, further the witness found no proof that A2 or any of the other accused persons were behind the murder of Sheikh Kirya and that the late Kirya declined to show the witness the actual text of the (SMS) message.</p> <p>Witness “A” (a pseudonym) (PW28), testified in relation to threats in examination- in-chief:</p> <p>“I saw 3 posters starting in 2014 in September/October when Yusuf Kakande was distributing those posters at the entrance of the mosque at Masjid Noor Mosque at William Street. On the posters were names of three (3) of us, first mine, followed by Najib Ssonko, Hassan Kirya and Bahiga Mustafa. It had three photos of people including my photo on top of the others. At the top was written:</p> <p>“This is to notify all Muslims of the badness of the people below ...” At the bottom was written: “The above want the place...Noor closed and they are the ones leading to the arrest of Muslims.Avoid them. ”</p> <p>In cross- examination he stated:</p> <p>“The words on this poster are the same as the one I received. The words which threatened my life are on the poster:</p> <p>“The ones above are the ones who want the closure of the mosque and you should avoid them.”</p> <p>Further he stated:</p> <p>“The messages sent to me by Hamuza Kasirye were taken from me by police in my phone and police bought me another phone. ”</p> <p>Further he stated that:</p> <p>“I did not know who attacked Jemba and those who killed Kirya, who attacked Sheikh Haruna Jemba but I know who printed the posters, he confessed to me. He is Sulaiman Mubiru and he did so sometime I can’t remember the date.</p> <p>I have never seen any of the accused at any of the murder scenes of either Bahiga or Kirya. Apart from warning to leave issues of Islam, Kamoga has never threatened me.</p> <p>I have got some threatening messages.like from Yahaya Mwanje, Kawooya and Murta Bukenya and I wrote to them about them but I have not shown court any such threatening messages”.</p> <p>Witness “B” (a pseudonym) (PW29), a 30 years old businessman testified about meetings held at A1 ’s residence and elsewhere which among other things resolved to isolate leaders such as Sheikh Bahiga, Sheikh Kirya, Sheikh Major Kiggundu and a campaign to tarnish their names at mosques, beat some and pour acid on others. In cross- examination, he denied anybody ever being assigned to kill either Bahiga or Kirya and he did not know who killed the two. However, he stated that at one such meeting Sheikh Kawooya (A1 ) said:</p> <p>“Sheikh Bahiga is like a snake in the saucepan and if you don’t kill it you cannot eat.</p> <p>You creatures, you have forgotten that we are the ones who hold your lives, should we release these young ones?”</p> <p>Further that Kamoga (A.2), on 25/4/2012 told him:</p> <p>“Those are just talking, for us we have guns here. Those people should not joke with us.”</p> <p>Witness “C” (a pseudonym) (PW30), a 34 year old businessman of Nansana Kampala testified that he knew the late Mustapha Bahiga and the late Hassan Kirya since 2003 and 2004 respectively. That he also knew A2 since 2009 whom he was a very close friend of. That A2 instructed the witness and other fellow youths at Nakasero Mosque to be always prepared so that if any one tried to take power / leadership, they should fight and protect A2’s leadership. A2 was a leader of that mosque and he instructed the witness together with about 100 youths being assisted by Sheikh Murta Bukenya as the group called “lubalusewa” was being trained. A2 together with Sheikh Murta Bukenya, A1 and A2 and several others met in March and April 2012 at Kyengera in someone’s home. In April 2012 Sheikh Abdul Karim Sentamu, whom A2 had said was conniving with others to take away leadership from A2 had been shot dead at William Street Mosque. Following his burial on Saturday, A2 called a meeting and told us</p> <p>"what I told could stop us from reaching our target has just started happening</p> </div> <p> </p> <div> <p>“ Later I met A2 with A1 and A3 and A4 who was introduced to us as an addition to our team and was to train us in appropriate aspects of fighting. The training started at the Mosque at Nakasero beginning of 2013. The training was in boxing, kicking and use of sticks in fighting. A2 often addressed us emphasizing discipline and told us our objective was to take over the leadership of this Nation. Further he told us that only a few people remained hindering our way, namely 1. Mustapha Bahiga, a police spy, 2. Hassan Kirya an agent of CMI, 3. Muhamad Kiggundu, a major in UPDF, 4. The others were Umar Sudiq Ndawula, Sheikh Muhamood Kibaate, Hajji Jamiru Kiddu and others to be made known later. That was at a meeting at the home of A1 at Gayaza Road which was attended by A1, A3, A4 and Hamidu Mbazira and many others. After that meeting in which A2 said the year 2014 was dedicated to ways and means of those who were standing in our way, another meeting took place at the home of A3 at Kajjansi. At that meeting, A1 repeated the same message A2 had given us in the earlier meeting and 3 things were agreed upon, namely; 1. To tarnish their names so that people hate them, 2. Whoever we were able to meet, we beat such a person, 3. Whoever we could be able to pour acid on, we could do so. In October 2014, we beat Yahaya Ssegujja at Masjid Noor Mosque at William Street to near death. After that A2 told us that the next thing was to be "a bullet to the flesh" and that Abdul Salam Sekayanja, who was introduced to us at that meeting would lead the new phase of "bullet to the flesh." In November 2011, A8 told us our objective was to kill the following people. 1. Bahiga Mustapha, 2. Hassan Kirya, 3. Muhamad Kiggundu, 4. Umar Sudiq Ndawula, which we declined to do because those where our prominent teachers for a long time.</p> <p>This witness rode one motorcycle from Ndeeba and handed it over to A3 at the mosque in November 2014. It was new and unregistered. Finally, this witness stated that he was suspected to be no longer loyal to the group of accused persons and he was isolated.</p> <p>D/IP Mpamizo Kanyomozi (PW35), a 48 years old Police Officer testified attached to SID at Kireka who on 12<sup>th</sup>/08/2015 found A14 at SMI headquarters at Mbuya, cautioned him, took him to SID Kireka and detained him there. That upon interrogation, A14 disclosed that he had been recruited in a group that was supposed to follow up Hassan Kirya at his home at Busabala and kill him. A14 showed the witness a phone with photographs of the home of late Kirya. The witness recovered the phone and handed it over to the store man D/Kawanga. The witness did not take a charge and caution statement from A14 and did not know whether A14 ever made a charge and caution statement at all. Finally this witness in cross-examination stated that he did not find any evidence relating to the murders of Sheikh Bahiga and Sheikh Kirya and that he did not know who killed any of the two.</p> <p>Intention to cause the death of Dr. Haruna Jjemba</p> <p>Intention is a mental state that represents a commitment to carry out an action or actions. Intention involves mental activities such as planning and malice aforethought.</p> <p>The intention to cause death may be inferred from the surrounding circumstances that threaten the life of the victim and once the prosecution shows such a set of circumstances was caused by the voluntary act of the accused persons the burden on the prosecution is discharged.</p> <p>From the evidence so far on record, we have seen that Haruna Jjemba was allegedly categorised to be among the people said to be opposed to A2’s leadership of the Tabliq sect otherwise known as ‘Jamia Daawa Salafiya. Haruna Jjemba’s name and photograph was among those people listed on fliers/ posters and described as people who were not wanted in the mosques patronized by A2, A3 and several others. He testified that on 31/01/2015 in the night, his home at</p> <p>Wattuba, Mattuga in Wakiso District, was attacked by unknown gun men who shot several rounds outside of the house. He belonged to the rival group headed by Mustapha Bahiga, deceased, Hassan Ibrahim Kirya, deceased, and other Muslim Clerics some of whom are either deceased or still living. In cross-examination, he stated that he received a call from someone saying that his neck was ripe for slaughter but he did not know the person who called him. That although he did not know who printed the fliers /posters he believed the fliers were made by A2. That he did not know who killed the deceased persons named in the indictment or who carried out any acts of terrorism and he did not mention any name of who telephoned him and threatened him and that he did not know who attacked his home on 3<sup>rd</sup> January, 2015.</p> <p>Upon consideration of the above evidence we are unable to find proof beyond reasonable doubt that there was intention to cause the death of Dr Haruna Jjemba.</p> <p>That the intention was manifested in overt acts:</p> <p>PW15 Dr. Haruna Jjemba testified that someone called him and told him that his neck was ripe for slaughtering. He also testified that his residence was attacked by gunmen who shot bullets at his house in Matugga. Five empty bullet cartridges were recovered from the garden outside the wall fence. PW17 No. 9996 Detective Corporal Lule Moses, PW28 (Witness A), PW29 (Witness B) and PW30 (Witness C) testified that the accused persons had intention to kill the victims. And that this intention was expressed by threats and preaching in mosques. Further that the threats were translated into action through holding meetings chaired by A1 and A2. A2 proceeded to actively plan by a campaign of slander, beating, militia training, identifying gunmen to execute bullet to flesh’ command, buying motorcycles and getting riders.</p> <p>Upon consideration of the above evidence we find and hold that the prosecution failed to prove beyond reasonable doubt that the intention was manifested in overt acts because with specific regard to attempts to kill Haruna Jjemba we see no beating, any other form of physical assault, attack on his person, pouring of acid or similar acts. The shooting took place outside the house while he was inside the house. No bullets or projectile was recovered from inside the house. None of the assailants entered the house. There appears to have not been any contact whatsoever between Haruna Jjemba and those who attacked his home.</p> <p>In our view no overt acts were committed in the house where Haruna Jjemba was or on the body of Haruna Jjemba during the night of 3/01/2015.</p> <p>Whether the accused persons directly or indirectly participated in commission of the offences in count Nos. 2, 3 or 4.</p> <p>The attackers were not identified by Dr. Haruna Jjemba (PW15) as the attack was at night, in the dark and he never got out of the house. No one saw the assailants as they attacked and showered bullets outside the house. There was an armed police guard outside the house who reported the attack to PW15 early the following morning.</p> <p>We wish to observe here that, at this point in the evidence, either the investigators or the prosecution team made a significant omission by leaving out the potentially useful evidence of the police guard. That guard is the one who could have seen, possibly identified, counted the number of the assailants, their transport means and any other relevant aspect about the assailants. In absence of that evidence participation of any of the accused in the commission of the offence remains, to us, very doubtful.</p> <p>Upon careful consideration of all the above circumstantial evidence, we find and hold that the prosecution evidence does not irresistibly show that the accused persons or any of them participated in the deaths of Mustapha Bahiga or Hassan Ibrahim Kirya or the attempted murder of Haruna Jjemba. The prosecution evidence leaves several possibilities to point to other perpetrators of the offences than the accused persons.</p> <p>Consequently, we find and hold that the prosecution has not proved beyond reasonable doubt that any of the accused participated in the commission of the offence in count No. 4 of the indictment.</p> <p>COUNT NO.1: Terrorism Contrary to Section 7(1) and 2(b) of the Anti­Terrorism Act, 2002.</p> <p>Essential Ingredients: The Prosecution is under a duty to prove beyond reasonable doubt all the four (4) ingredients, namely:</p> <ol><li>Actual, attempted or threatened murder, maiming or attack on a group of persons in a private or public institution;</li> <li>The actual, attempted or threatened murder, maiming or attack on a person or a group of persons in a private or public institution were for purposes of intimidating the public or a section of the public and for a religious, political, social or economic aim;</li> <li>The actual, attempted or threatened murder, maiming, attack on a person or a group of persons in a private or public institution were committed indiscriminately without due regard to the safety of others or property.</li> <li>The accused persons participated in the commission of the offence either by direct involvement or complicity.</li> </ol><p>Section 7(1) of the Anti-Terrorism Act 2002 provides that any person who engages in or carries out any act of terrorism commits an offence and shall on conviction be sentenced to death if the offence directly results in the death of any person. In any other case the person shall be liable to suffer death. The acts or omissions that constitute the offence of terrorism are listed in Section 7 (2) (a) - (j) of the Act. In the instant case, under count 1 of the indictment, the acts for which the accused persons have been charged, and which the prosecution must prove beyond reasonable doubt, are contained in Section 7 (2) (b) of Anti­Terrorism Act 2002, namely:</p> <p>“direct involvement or complicity in the murder, kidnapping, maiming or attack, whether actual, attempted or threatened, on a person or groups of persons, in public or private institutions. ”</p> <p>Section 7(2) of the Act expressly states that the offence of terrorism is committed when a person carries out “all or any” of the acts enumerated in Section 7 (2) (a) - (j) of the Act. The act or acts of terrorism must have been committed:</p> <p>“for purposes of influencing the government or intimidating the public or a section of the public and for a political, religious, social or economic aim, indiscriminately without due regard to the safety of others or property”.</p> <p>Thus the aspects for consideration are the purpose or purposes for carrying out the acts or acts; the manner in which the act or acts are carried out; and the nature of the act or acts. The essential ingredients of the offence of terrorism under Section 7(2) (b) of the Anti-Terrorism Act have already been highlighted above.</p> <p>All the fourteen accused persons elected to keep silent when they were put on their defence. The burden of proof of a criminal offence rests on the prosecution and remains so throughout the trial. The accused persons do not bear the burden of proving their innocence. They are presumed innocent until proven guilty. The duty is therefore on the prosecution to discharge the burden of proof on all the ingredients of the offence of terrorism. It is for this court, therefore, to analyze the prosecution evidence and determine whether on its own, that evidence proves beyond reasonable doubt, all the four ingredients of the offence of terrorism. This will be discussed along the issues that were agreed on.</p> <p>Issue (i): whether there was actual, attempted or threatened murder, maiming or attack on a person or a group of persons in a public or private institution.</p> <p>On actual murder, it is already a finding of this court as reflected in counts 2 and 3 that the evidence adduced by the prosecution does not establish beyond reasonable doubt that the accused persons or any of them participated in the murder of Mustapha Bahiga or Hassan Ibrahim Kirya. Actual murder as an act of terrorism has therefore not been proved against the accused persons by the prosecution beyond reasonable doubt.</p> <p>On attempted murder, it is a finding of this court under count 4 that attempted murder as an act of terrorism was not proved by the prosecution against all the accused beyond reasonable doubt.</p> <p>On threatened murder, the prosecution relied on the evidence of PW15 (Haruna Jjemba); PW22 (Yasin Kakomo); PW28 (Witness A) PW29 (Witness B), PW30 (Witness C); and PW36 (D/Inspector Byamugisha Fulgensi).</p> <p>PW15 (Jjemba) testified that he received a call from someone telling him that “your neck is ripe for slaughtering. PW28 (Witness A) testified that he received pictures of graves on his phone through Whatsapp. One grave was with a body and another was empty. After the death of Bahiga he received pictures of a magazine and a gun AK47. The pictures were accompanied with words that “the other one is finished, this one is yours.”The other evidence is threatening messages traced to be that of A9 (Sematimba Abdulhamid Mubiru) who allegedly confirmed that he sent messages and that the number 0782344324 which sent the message was his. This evidence is supported by the statement of Ibrahim Hassan Kirya (Exhibit P30), which was recorded by PW23 (SSP Odong Mark Paul) before Kirya died.</p> <p>The prosecution however did not tender in evidence any recording or print out of the calls where PW15 (Haruna Jjemba) was told on phone that his neck was ripe for slaughtering, nor was the telephone set tendered as an exhibit. Similarly, the handset or phone of PW28 (Witness A) that received the Whatsapp messages was not tendered in evidence, neither were the offending messages tendered in evidence in any form, that is, soft copy or hard copy. In the same manner the phone and the offending text message against Kirya allegedly sent by A9 (Sematimba AbdulhamidMubiru) were not tendered in evidence by the prosecution.</p> <p>Witness A stated during cross examination that the threatening death messages sent to him were from A10 (Hamuza Kasirye). The evidence of PW36 as supported by exhibit P30 is that the threatening messages to Ibrahim Kirya were sent by A9 (Sematimba Abdulhamid Mubiru) who is supposed to have confirmed so.</p> <p>A9 and A10 elected to keep quiet when called upon to make their defence. This is their constitutional right. It does not remove the burden of proof on the part of the prosecution to prove their guilt beyond reasonable doubt. The burden of proof at all times remains with the prosecution to prove the guilt of the accused. Section 101 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist, that is the burden of proof lies on that person. [Also See: Woolmington v. DPP; Okethi Okale &amp; Others v. Republic; Lubogo &amp; Others v. Uganda; Joseph Kiiza &amp; Others v. Uganda, supra].</p> <p>Thus, the burden to prove threatened murder of Hassan Kirya, of PW15 (Haruna Jjemba) and of PW28 (Witness A) through calls or text messages or pictures sent to their respective mobile telephones was, in our opinion, not discharged by the prosecution to the required standard in criminal matters.</p> <p>We agree with the Assessors that there was reasonable doubt as to whether the calls or messages or pictures were actually sent to PW15 and PW28 on their respective mobile phones. We make the same finding regarding the threatening messages sent to PW15, PW28 and Hassan Kirya.</p> <p>On threatened murder, however, there is other evidence that threats of death were directly communicated to some witnesses by Sheikh Yunus Kamoga (A2) in his conversations with them, during meetings, preaching in mosques, and through fliers which were distributed among Muslim.</p> <p>On threatened murder through direct communication or person to person conversations, PW28 (Witness A), testified that Sheikh Yunus Kamoga (A2) told him (Witness A) that:</p> <p>“...you are a businessman; you should leave these things. You are not a sheikh...if not these children will kill you. ”</p> <p>PW22 (Yasin Kakomo), who was part of the Tabliq sect with the late Mustapha Bahiga and the late Hassan Kirya since 1988 and 1994 respectively, testified that A.2 sheikh Yunus Kamoga, in reference to the Bahiga group, told him (Kakomo) that;</p> <p>“.../ was tired and not going to accept anything that was going to divide</p> <p>Muslims and even if it meant killing I would kill....................... those are joking and</p> <p>have never killed but for me even if it is during daylight I can kill”.</p> <p>Witness B also testified that A2 (Sheikh Yunus Kamoga) told him that (Witness B) that:</p> <p>“Kirya cannot survive, those people are joking, for us we have guns”. Section 58 of the Evidence Act (Cap. 21) provides that:</p> <p>“All facts, except the contents of documents, may be proved by oral evidence”. Section 59 of the same Act provides as follows:</p> <p>“Oral evidence must be direct, that is to say:</p> <ol style="list-style-type:lower-alpha"><li>if it refers to a fact which could be seen, it must be the evidence of a witness who says he or she saw it;</li> <li>if it refers to a fact which could be heard it must be the evidence of a witness who says he or she heard it. ”</li> </ol><p>PW22 and PW28 testified as to what they directly saw and heard, regarding their direct conversations with A2 (Sheikh Yunus Kamoga). Their evidence was therefore not hearsay but direct oral evidence. PW22 in his own words, testified that he knew A2 (Sheikh Yunus Kamoga) “very well” as he had been with him “for quite a long time” and we were united because of religion and we were doing religious matters together.” PW28 also testified that he knew A2 (Sheikh Yunus Kamoga) well, along with other accused persons “as a fellow Muslim and I have been with them for a long time”. The two witnesses belonged to the Tabliq sect like A2. PW28 testified that he had known the accused persons, including A2, for various periods since 1994. PW22, a Muslim from Masaka, Lwengo, testified that he was part of the tabliq sect to which A2 and the late Mustapha Bahiga and Hassan Kirya belonged. PW28 and PW22 each identified A2 in court while they were testifying. They could therefore not have been mistaken about his identify. The defence, save for submitting that the accusations were provoked by wrangles amongst the two groups, did not, in our view, controvert or discredit this evidence.</p> <p>On the aspect of threatened murder through direct communication or conversations, therefore, it is our finding that the prosecution has proved this aspect beyond reasonable doubt against A2.</p> <p>The same legal provisions on direct oral evidence as highlighted above concerning threatened murder by direct communication would apply to the evidence against A3 (Murta Bukenya) and A4 (Fahad Kalungi) directed at PW30 (Witness C). Witness C testified that A1 ( Sheikh Siraje Kawooya), A3 (Murta Bukenya) and A4 (Fahad Kalungi) informed him (Witness C) that he had hours to purify his name otherwise he would be included on the list of those to be killed. This was not hearsay since PW30 (Witness C) was testifying about what he heard directly from the said three accused persons. PW30 (Witness C) could not have been mistaken about the identities of A1, A3 and A4. His evidence is that he was in Kamoga’s group where he mobilized with A1 (Sheikh Siraje Kawooya), A3 (Murta Bukenya) and eventually A4 (Fahad Kalungi) who was introduced to the group by A2 (Sheikh YunusKamoga) to help in training. He was acquainted with the leadership of the Muslim sect at William Street Mosque since 2003. He knew about the disagreements and break up leading to the division into two groups one led by Kamoga and the other by Haruna Jjemba. During the trial he identified A1, A3 and A4, among other accused persons, as persons he knew well.</p> <p>In view of the above adduced evidence, based on the law already cited, it is our finding that threatened murder of PW30 by A1, A3 and A4 as brought out by Witness C was established beyond reasonable doubt by the prosecution against A1, A3, and A4.</p> <p>On the threatened murder during meetings, PW29 (Witness B) testified that while in the meeting towards the end of 2011 at the home of A1 at Gayaza Road, A1 (Sheikh Siraje Kawooya) said:</p> <p>“Bahiga is like a snake in the saucepan. If you do not kill it, you cannot eat.”</p> <p>PW29 (Witness B) testified that A3 (Murta Bukenya) told them in the same meeting that (Hassan) Kirya was a government spy; that in the days of prophet Mohamed they would send someone to kill those who frustrated the progress of Muslims. PW30 (Witness C) testified that A8 (Sekayanja Abdul Salaam) told them that their target was to kill Sheikh Bahiga, Sheikh Kiggundu, and Swadiq Ndawula; that A2 (Sheikh Yunus Kamoga) introduced A8 (Sekayanja Abdulsalaam) as an expert in “bullet to flesh”, that they recruited ex rebels, and that A4 (Fahad Kalungi) was on the selection team.</p> <p>The evidence of PW29 (Witness B) and PW30 (Witness C) is not hearsay as the two witnesses actually attended the meetings and heard directly what the stated accused persons were saying. PW29 (Witness B) and PW30 (Witness C) knew A1, A2, A3, A4 and A8 well. They identified the said accused persons in court during the trial.</p> <p>The defence submitted that since there were no minutes of the meetings submitted in evidence, what transpired in a meeting can only be proved by documentary evidence. However, in view of Sections 58 and 59 of the Evidence Act already highlighted above, oral evidence of a person who saw the accused persons and heard what they said is as good as documentary evidence of what transpired in such meetings. Witness B stated during cross examination that initially minutes were taken but later this was abandoned. The oral evidence of threatened murder by A1, A2, A3, A4 and A8 was not controverted by the defence.</p> <p>In the circumstances, based on the law and the above evidence, it is our finding that the element of threatened murder through meetings by A1, A2, A3, A4 and A8 has been proved by the prosecution beyond reasonable doubt.</p> <p>On threatened murder using fliers, PW30 (Witness C) testified that A7 (Kakande Yusuf) distributed fliers at William Street Mosque. The fliers were tendered in evidence by the prosecution as exhibits P41, P42 and P43. Exhibit P42 bears photographs of six people namely Ssonko Najib, Mustapha Bahiga, Umar Swadiq, Ibrahim Hassan Kirya, Mahmood Kibaate, Sudiq Ndaula. Exhibit P42 bears the names of the same people save that the name of Mustapha Bahiga who had already been killed was replaced by that of Omulangira Kassim Nakibinge. Exhibit P43 which was the first flier to be issued, bore the names of Ssonko Najib, Hassan Kirya and Mustapha Bahiga. The messages on the fliers were that the people mentioned thereon should be avoided (“mubewale”). This in our opinion does not amount to a death threat.</p> <p>In that regard, based on the adduced evidence and findings, it is our finding that the threatened murder using fliers has not been proved by the prosecution beyond reasonable doubt.</p> <p>On maiming, PW20 (Kenneth Rono) testified that he was injured with glass on his right eye. PW19 (Mubiru Ben) the health practitioner examined him on the medical form PF3 where he classified the injury as harm. The medical form was tendered in evidence by the prosecution as exhibit P29. PW21 (Semakula Isma) testified that he was shot on his right leg on the day Hassan Kirya was shot, and he was admitted to Mulago Hospital for six months. Witness C testified that a one Yahaya Ssegujja was beaten to a point of near death at William Street by a group belonging to A2 (Sheikh Muhammad Yunus Kamoga) and A4 (Sheikh Fahad Kalungi) who was in charge of the beating. However Ssegujja was not called as a prosecution witness neither was there a medical report to classify the kind of injury suffered by Ssegujja.</p> <p>Thus, the evidence of PW19 and PW20 as corroborated by exhibit P29 establishes actual maiming of PW20. There is however no direct or circumstancial evidence to establish that the accused persons or any of them participated in the actual maiming of PW19 or PW20. In that regard actual maiming as an act of terrorism has not been established beyond reasonable doubt against the accused persons or any of them.</p> <p>On threats of maiming, Witness C testified that in a meeting attended by A1 (Sheikh Siraje Kawooya), A2 (Sheikh Yunus Kamoga) and A4 (Sheikh Fahad Kalungi), there was a resolution that one of the ways to eliminate people standing in their way was to use acid. This, as already established above, was direct evidence by Witness C who attended the meeting and directly heard the statements of A1 and A4. That evidence was not controverted and we believe and accept it. Threats of maiming have, in our view, been established against A1, A2, and A4 by the prosecution beyond reasonable doubt.</p> <p>On actual attack, the Oxford Advanced Learner’s Dictionary defines “attack” to mean, among other things, as “an act of using violence to try to hurt or kill” or “strong criticism of something in speech or in writing’ (emphasis added).</p> <p>The evidence of PW15 (Haruna Jjemba) PW16, PW17 and PW18 establishes that the home of Haruna Jjemba was attacked by gunmen who shot bullets at his wall fence. Spent cartridges (Exhibit P26) were recovered from the scene of crime by PW17. However, as established in count No. 4, there is no evidence, direct or circumstantial, to link the attack to the accused persons. Thus “attack” in the sense of using violence or trying to kill by the accused persons has not been established beyond reasonable doubt by the prosecution.</p> <p>There is the evidence of PW15, PW22, PW26, PW27, PW28, Witness C and PW36 that the names and reputations of Mustapha Bahiga, Umar Swadiq, Ibrahim Hassan Kirya, Mahmood Kibaate, Sudiq Ndaula and Omulangira Kassim Nakibinge were tarnished to the effect that the said people were a danger to the community and that they should be avoided. This was contained in fliers (exhibits P41, P42 and P43). There is evidence that A7 distributed these fliers at William Street Mosque. In exhibit P41 Haruna Jjemba was stated to have stolen prize money for the best Quran reader in 2004 and to have stolen funds from Kabigi School out of which he built his own school. PW28 (Witness A) was stated to have stolen a coaster. The words in the fliers attacked the reputations of the people mentioned. The evidence of PW22 is that A3 read out the names in the fliers which were distributed in a seminar in Masaka. The evidence of PW28 (Witness A) and PW29 (Witness B) and PW30 (Witness C) is that the fliers were distributed in Kampala with the words that those named should be avoided.</p> <p>It is our finding that this amounted to attack of the reputations of the people named. The adduced evidence is that it is A1, A3 and A7 who were involved in the attacks.</p> <p>One important aspect in the first ingredient of the offence of terrorism is that the actual, attempted or threatened murders, and the maiming or attack should be on a person or a group of persons in a public or private institution. The word “institution” is defined by oxford English Dictionary as “an organization founded for a religious, educational, professional, or social purpose”. Black’s Law Dictionary, 8<sup>th</sup> Edition, at page 813 defines the same term as “an established organization especially one of a public character<sup>1</sup>’.</p> <p>The evidence adduced by prosecution has established that Ssonko Najib, Mustapha Bahiga, Umar Swadiq, Ibrahim Hassan Kirya, Muhamood Kibaate, Haruna Jjemba and Omulangira Kassim Nakibinge, all of whom were targeted in the attacks, were in the leadership of Jamiya Dawa Al Salafiya’, a religious movement within the Muslim Religion based at Nakasero and William Street mosques.</p> <p>The defence submitted however that the existence of such an institution was not proved; that in Uganda established institutions or organizations are registrable entities under laws like Non-Governmental Organizations Act, the Trustees Incorporation Act and the Companies Act; and that without a Certificate of Incorporation showing that the said institution is a registered private or public institution, no act of terrorism as envisaged under Section 7(2)(b) of the Anti­Terrorism Act can be sustained.</p> <p>The Cambridge international Dictionary of English, Cambridge University Press at page 651 defines an institution as a large and important organization such as a University or a Bank: a medical/ educational/ financial institution. An institution is not only restricted to registered or registrable entities. It is true, it includes registered or registrable entities, but it extends beyond that. It can relate to a religion, a family, a school, a society, a University, etcetera. With respect, there is nothing in the Anti-Terrorisms Act to suggest that an institution should be registered or must be a legal person with a Certificate of Incorporation the way it is understood in the law of Business Associations. There is evidence adduced in this case that the threats or actual threats were directed at persons in an organization, the ‘Jamiya Dawa Al Salafiya’, which existed among persons professing Islam as a religion in Uganda.</p> <p>Issue (ii): Whether the acts in issue (i) were for purposes of intimidating the public or a section of the public and for a religious, political, social or economic aim.</p> <p>The prosecution relied on the testimonies of PW15 (Haruna Jjemba), PW22 (Yasin Kakomo), PW23 (SSP Odong Mark), PW28 (Witness A), PW29 (Witness B), PW30 (Witness C), and PW36 (DIP Byamugisha Fulgence) to establish this ingredient of the offence.</p> <p>On the aspect that the proved acts of terrorism were for purposes of intimidating the public or a section of the public, PW16 (Haruna Jjemba) testified that he saw the first flier (Exhibit P42) bearing names of three people, namely Mustapha Bahiga, Hassan Kirya and Najib Ssonko with their photographs, with words that they are a danger to the community; that he saw the second flier (Exhibit P42) it came after the killing of Mustapha Bahiga whose name was replaced with by that of Prince Kassim Nakibinge.</p> <p>PW15 (Haruna Jjemba) testified that he got fliers bearing photographs and names of persons whose names were being tarnished among the Muslim community. The fliers sought to tarnish the reputations of the named persons. PW27 (Detective ASP Mulamira Patrick) testified that he conducted a search at the home of A1 (Siraje Kawooya) where fliers bearing names of the targeted sheikhs were written. This was confirmed in the testimonies of PW22 (Yasin Kakomo), PW26 (Semwanga Lutaaya Badru), PW28 (Witness C) and PW36 (Detective Inspector Byarugisha Fulgence).</p> <p>PW15 testified that the fliers caused a threat to him. PW22 (Yasin Kakomo) testified that after A3 (Murta Mudde Bukenya) read out names on the fliers which were distributed in the Masaka seminar, he (PW22) lost hope saying that he had never seen Muslims refusing fellow Muslims to enter into mosques and calling them enemies. This was confirmed in the testimonies of PW28 (Witness A), PW29 (Witness B) and PW30 (Witness C) who all testified that fliers were distributed in mosques in Kampala with words that those named should be avoided.</p> <p>This, in our considered opinion, amounted to intimidation of that group of Muslims for religious and or social purposes. The adduced evidence, in our view, establishes, beyond reasonable doubt, the element of intimidation of a section of the public, that is, a group of targeted Muslims within their organization ‘Jamiya Daawa Asalafiya’ where there were warring factions.</p> <p>On intimidation for religious purposes, PW15 (Haruna Jjemba), PW22 (Yasin Kakomo), PW28 (Witness A), PW29 (Witness B) and PW30 (Witness C) testified that there were wrangles and misunderstandings among the Muslim community around 2011 and 2012 over leadership of different mosques. This led to forming of two rival groups. One group was led by A2 Sheikh Yunus Mohammad Kamoga and the other was that of Hassan Kirya and Mustapha Bahiga. The prosecution witnesses testified that the group of A2 started abusing the other group of Bahiga and Kirya over loud speakers.</p> <p>The evidence of PW15 (Haruna Jjemba), PW22 (Yasin Kakomo), PW28 (Witness A), PW29 (Witness B) and PW30 (Witness C) is that A2 (Sheikh Yunus Muhammad Kamoga) ignited conflicts. There is evidence of intimidation for religious purposes through meetings as testified by the witnesses who attended those meetings. Witness C testified that A2 wanted to remain in office and retain religious leadership of ‘Jamiya Daawa Al Salafiya’ Group. PW29 (Witness B) testified that towards the end of 2011 together with several of the accused persons and others numbering up to forty or more attended several meetings at A1’s (Sheikh Kawooya’s) home along Gayaza Road with the objective of changing the leadership of the organization called “Jamuhiyata Daawa Asalafiya.” Witness C in his testimony quoted A2, following the shooting of Sheikh Abdul Karim Sentamu, to have stated as follows at the meeting:</p> <p>“What I told ...would stop us from reaching our goals has just started happening...”</p> <p>Witness B testified that in 2011, Muslim leaders used to have meetings after every week; that one day they agreed that some leaders had over stayed in power and that they should be removed to allow the young ones to be involved in leadership; and that in some meetings held by Muslim leaders, A1 (Sheikh Siraje Kawooya) would talk about Sheikh Ibrahim Kirya, Bahiga, Kibaate, Lubega, Kiddu, and Kiggundu. PW22 and Witness A testified that misunderstandings among the Muslim community started around 2011 or 2012. PW15 (Haruna Jjemba) knew A2 very well as a fellow Muslim belonging to the Tabliq sect. He identified him in court during the trial. PW15 was a committee member together with A2 (Yunus Kamoga), Mustapha Bahiga, Ibrahim Hassan Kirya and others numbering to about twenty. PW28 (Witness A) also identified A1, A2, A3, A4, A7, A9, A12, and A13 in court as fellow Muslims he knew for various periods since the 1990’s. PW29 (Witness B) also knew several of the accused persons and attended meetings with them towards the end of 2011 at Sheikh Kawooya’s (A1) home along Gayaza Road. PW30 (Witness C) also attended a meeting where he quoted A2 to have stated that the only four people remaining hindering their way were Mustapha Bahiga, Hassan Ibrahim Kirya, Major Mohamed Kiggundu, Umar Sudiq Ndaula, Mohamed Kibaate and Haji Jamil Kiddu. He also attended a meeting with A.1 (Siraje Kawooya), A3 (Murta Mudde Bukenya), A4 (Fahad Kalungi) and others in 2014 at the same home of A1.</p> <p>The testimonies of the above prosecution witness who knew some of the accused very well and who attended the meetings and listened to their conversations, in our view, establishes beyond reasonable doubt that the intentions of the stated accused persons were to intimidate the public or a section of the public for religious as well as political purposes.</p> <p>On intimidation for religious purposes using fliers, PW15 (Haruna Jjemba) testified that he believed the fliers were from A2 (Yunus Kamoga); that when he talked to him about it, A2 said there were more fliers which were coming. PW22 (Yasin Kakomo) testified that A2 (Sheikh Yunus Mohammad Kamoga) told him (PW22) that he cannot tolerate the Bahiga group to separate the Muslims even if it means shedding blood; that in Nyendo, Masaka, A3 (Sheikh Murta Mudde Bukenya) made announcements that people who were enemies of Islam were not wanted in Muslim mosques and fliers listing the people not wanted were distributed. PW22 (Yasin Kakomo) testified that he took the flier to A2 (Sheikh Yunus Mohammad Kamoga) who told him that was the beginning and more were coming; that Bahiga was killed immediately after the second flier came out. The prosecution evidence is that fliers/leaflets were distributed at different mosques bearing names, photographs and words stating that these people are a danger to the Muslim community.</p> <p>The above evidence, in our view, amounts to intimidation for religious purposes.</p> <p>The testimonies of the prosecution witnesses that at one time a member of the Bahiga group (Yahaya Segujja) was beaten and tied with ropes and A2 himself stood to fight Musa Masimbi was not supported by any other evidence. Neither Yahaya Seguja nor Musa Masimbi were called as prosecution witness to corroborate this piece of evidence. We find and hold that allegation was not proven beyond reasonable doubt.</p> <p>On intimidation for political purposes, Witness C testified that A2 Sheikh (Yunus Mohammad Kamoga) told the youths that when he and others were still young they put a foundation and it was the responsibility of the youths to build on that foundation and that they will not reach their target unless some people are dead and no longer on earth; that after that Sheikh Sentamu died and A2 told their group the things he told them would hinder them had just started happening; that meetings were held at the home of A1 (Sheikh Siraje Kawooya) at Gayaza Road where A2 (Sheikh Yunus Mohammad Kamoga) told them that their target was to take over leadership of this nation, that there were a few people hindering their way, among them Bahiga a police spy, Kirya CMI, and Mohammad Kiggundu a UPDF Major; that after that A4 (Sheikh Fahad Kalungi) was introduced to the recruits to teach them how to fight. A8 (Sekayanja Abdul Salam) was introduced to them to teach them how to use a gun. He told them their target was to kill Sheikh Kirya, Sheikh Bahiga, Sudiq Ndaula and Sheikh Kigundu. When the recruits failed to execute the plan, A2 (Sheikh Yunus Mohammad Kamoga) came up with plan B to use ex rebels. A4 (Sheikh Fahad Kalungi) and A8 (Sekayanja Abdul Salam) were to select the rebels. The name of A5 (Amir Kinene) was mentioned among the desired recruits.</p> <p>The evidence of witness C is that the accused had plans to assume political leadership by overthrowing the legitimate government of Uganda, and that one of the reasons for earmarking Bahiga and Kirya were because of their political attachment to government, that is Bahiga being a “a spy for police” and Kirya “a worker for Chief of Military Intelligence”.</p> <p>The above evidence, which implicates A1, A4 and A8, in our view, amounts to intimidation for political purposes.</p> <p>On intimidation for economic purposes, PW15 (Haruna Jjemba) testified that the first flier (Exhibit P41) stated that Haruna Jjemba (PW15) stole prize money for the best quran reader in 2004; that PW15 as “Mubbi yabba... wessomero lye Kabigi n’azimba mu erirye e Wattuba” (he stole from a school in Kabigi and built his own school in Wattuba). PW28 (Witness A) testified that in the same fliers he (Witness A) was accused of stealing a coaster and rice.</p> <p>Further, on intimidation for social purposes, PW30 (Witness C) testified that, in their meetings they agreed that, whoever gets a chance to get a microphone would tarnish the names of people mentioned on the fliers so that they get tired of them. Exhibits P41 and P42 bore words that tarnished the names of all the people named. The message on the fliers to the Muslims was “tubekesa abasilamu okukolegana nabantu abo nebebakolagana nabo” (“we warn those Muslims who are dealing with them”); “mubewale”. (avoid them).</p> <p>PW30 (Witness C) attended the meetings and he knew the accused persons who made the statements during the meetings having been their associate and colleague in the Muslim community. He could not have been mistaken as to their identity and he identified the mentioned accused during the trial. His evidence that the said accused persons made the statements during meetings was corroborated by that of PW15 (Haruna Jjemba), PW28 (Witness A), PW29 (Witness B) and PW30 (Witness C). All that was direct oral evidence admissible under Sections 58 and 59 of the Evidence Act highlighted above.</p> <p>In view of the forgoing, based on the adduced evidence and the reasons given, it is our finding that the prosecution has proved beyond reasonable doubt that those acts of terrorism that have been proved against the stated accused persons were for purposes of intimidating the public or a section of the public and for a religious, political, social or economic aim.</p> <p>Issue 3: Whether the acts in (1) were committed indiscriminately without regard to the safety of others or property:</p> <p>The acts in (1) have been thoroughly discussed above. For ease of reference, these are actual, attempted or threatened murder, maiming or attack on a person or group of persons in a public or private institution and whether these acts were committed indiscriminately without due regard to the safety of others or property.</p> <p>What meaning do we attach to the word indiscriminate? The question to guide the court is: what is indiscriminate in an act of terrorism?</p> <p>In common parlance the word indiscriminate means affecting or harming many people or things in a careless, reckless, or unfair way. When something is indiscriminate, it makes no fine distinctions. Usually the word is used to describe violent acts or natural events because these things do not have a specific target. They affect all people without considering the differences in their lives for example nuclear bombs are indiscriminate, as are earthquakes. They affect everyone in their path rather than picking or choosing.</p> <p>In Black’s Law Dictionary, Ninth Edition, page 843 indiscriminate attack is defined as follows: (International law): An aggressive act that:</p> <ol><li>Is not carried out for a specific military objective,</li> <li>employs a means of combat not directed at a specific military objective, or</li> <li>Employs a means of combat the effects of which cannot be limited in accordance with an international protocol such as the Geneva Convention of 1949 and their protocols or The Hague Conventions of 1899 and 1907.</li> </ol><p>We shall take the meaning of indiscriminate to be an aggressive act (aggressive in that it is done in a determined or forceful way) not carried out for a specific military objective and affecting everyone and everything in their way without picking or choosing.</p> <p>It is worth noting at this point that this Court found that actual murder (i.e. the two counts of murder) was not proved to the required standard and neither was attempted murder.</p> <p>Court however found that acts of terrorism; threats of murder; threat to maim; and attack on a person or group of persons were proved by prosecution beyond reasonable doubt and it is in this context that the third ingredient will be considered. Court will look at and assess the circumstances under which they were committed to determine whether they were indiscriminately employed without regard to the safety of others or property.</p> <p>Threat of murder; threat to maim; and attack on a person or group of persons</p> <p>Prosecution led evidence of PW15, (Sheikh Haruna Jemba), PW22 (Haji Yasin Kakomo), PW28 (Witness A), PW.29, (Witness B), PW30 (Witness C) and PW36, (D/IP Byamugisha Fulgence):</p> <p>PW22: A hotelier and businessman testified that he was trying to mediate the split factions in the Muslim Community of the Tabliq sect: one was led by Sheikh Yunus Kamoga while the other was led by late Sheikh Mustafa Bahiga. PW22 knew the deceased Sheikh from 1988. He knew Sheikh Yunus Kamoga (A2) since 1983 and late Sheikh Kirya in 1994. He got to know Sheikh Murta Bukenya (A3) in 1988/89. He identified the three accused Sheikhs in court. Indeed, they worked together to spread the word of Islam and the Islamic faith. Often times, they would hold meetings. They would also spread the faith in Nakasero (Kampala), Masaka, Mutukula, Kyazanga, Mbarara, Busia and the rest of the country.</p> <p>They developed misunderstandings in their group in 2011/1012. In 2013, the problems exacerbated in their team of Tabliqs. Then started the rumor mongering and backstabbing of the leaders. PW22 decided to try and arbitrate with a view of resolving the disputes. The success he achieved was short-lived since in 2014 problems arose again.</p> <p>He discussed the issue of publicizing matters on the mic with Kamoga who promised to ensure that this is stopped and for a month, they were compliant. Then violence broke out when at William Street a Muslim faithful from the Bahiga group was beaten and tied with ropes.</p> <p>PW22 again went to him in Nakasero whereby A2 told him that some issues were disturbing him and for that reason, he should return later. After about a week, he went back to him and found him still unsettled. A2told him that he was tired and would not accept the position of the men; he objected to a division and if it meant shedding blood, he would do it. If it meant killing them, he would do it. He also said those group members were joking as they had never killed but for him, he could do it in broad daylight. This he said as he thumped his chest.</p> <p>After hearing from A2, he went back to Masaka. A2 however told him that on 20<sup>th</sup> November 2014, he (A2) and his group would go to Nyendo for a Seminar to address all Muslims in the country.</p> <p>PW22 attended the Seminar. A3 read out the names of people no longer wanted in the mosques of Muslims as follows: Sheikh Mustafa Bahiga, Sheik Sadiq Ndawula, Sheik Najib Sonko, Sheik Hassan Kirya, Sheik Muhammed Kibaate and Sheikh Haruna Jemba. He was in no doubt that all this was from the office of the Amir who was then Sheikh Yunus Kamoga (A2). A1 was castigating the Muslims whose names were read out and the message was that ‘those whose names were read out were enemies of Islam; they should not be allowed in mosques’.</p> <p>PW22 testified that he lost hope when the names were read out and the message articulated; for it had never been heard of or seen to disallow brothers from Islam and the mosque.</p> <p>About a month later, he heard of the death of Sheikh Bahiga and he was scared. The words he thought were a mere threat or a joke turned out to be real. He got very scared and told his colleagues in Kyazanga and Masaka and warned them of the dangers brewing in Kampala.</p> <p>A week from the death of Sheikh Bahiga, he started receiving threatening messages. He placed the issues in the hands of the police and was given security.</p> <p>PW28 (Witness A) testified that the misunderstanding within the Tabliq sect led to two factions forming. The tension culminated into posters pointing out people to be avoided and warning Muslims not to associate with them. The posters were being distributed at the entrance of the mosque on William Street. He got one from a one Yusuf Kakande. His picture was on one of the posters together with the ones of Sheikh late Mustafa Bahiga and late Sheikh Hassan Kirya. He testified that with the two having been killed, he lives in fear. He proceeded to A2 to tell him about the challenge and the response was ‘this was the beginning and more are coming’.</p> <p>More posters were printed and PW28 was on all of them. He testified that many attempts were made to resolve the misunderstanding but they failed.</p> <p>Kamoga told PW28 that ‘you are not a Sheikh or Muslim leader but a business man’ and ‘that he should concentrate on his business otherwise the youths would kill him’.</p> <p>PW28 testified that he has since been receiving threats in various forms. A one Hamza Kasirye (A10) (which name he got from the provider using MM app) sent him threatening messages which included pictures of a magazine and gun; picture of a grave with words ‘that one has gone, next is yours’; two pictures one with a body and one without.</p> <p>PW28 during cross-examination testified that on one of the posters there was a statement to the effect that he stole a coaster which should have been for the Muslims and stole rice as well. PW28 had all the information on a CD. Defense Counsel applied to have the CD produced in Court but soon after abandoned the application.</p> <p>PW28 pointed out that A2 and A3 made verbal threatening messages to him.</p> <p>PW30 (Witness C): he too testified on the wrangles and the rift that threatened the Muslim Tabliq sect. He also testified on failed mediation. He pointed out Sheikh Kamoga (A2)wanted to retain leadership at all cost. Youths were recruited to protect his position. With the help of Sheikh Murta Bukenya (A3) they were about to mobilize a team of about 100 youths. These would meetin Nakasero Mosque, Kyengera and various other places; A2 called the team 'Balubaluseewa’ meaning ‘where has the war broken out?’ and the essence was to be ever prepared. The leaders of the team were picked and they would meet the Sheikh (A2) in the company of A1 and A3. A2 at the meeting would tell them that they had put a foundation and it was their responsibility to build on that foundation. He warned them that they would not achieve that purpose unless some people were eliminated or dead.</p> <p>In 2012, a one Sheikh Ssentamu was shot at and killed near Nakasero Mosque. The assailants were never found but after the burial, A2 met with the youths at Kajjansi and told them that what he earlier told them about things hindering their progress and targets were beginning to happen and take place. A1 and A3 were in attendance and they introduced a one Fahad Kalungi (A4) who would assist in training the youths. The training was in boxing, kicking, how to use sticks and this intensified with time. A2 told the youths that the ultimate objective was to assume political power but some obstacles were hindering their path. There was Sheik Mustafa Bahiga, a police spy, Sheikh Kirya, a CMI operative and Major Kiggundu (now deceased), a UPDF soldier. This was in a meeting at A1’s residence in Gayaza and A1, A4 and others were in attendance.</p> <p>PW30 further testified that several other meetings were held and in one of them, they made three major resolutions to eradicate the enemy:</p> <ul><li>to tarnish their names so that the public hold them in disrepute,</li> <li>to ambush any one and beat,</li> <li>to pour acid on any of them if possible.</li> </ul><p>These tasks were assigned to different players. Work commenced. At the subsequent meeting, A2 informed them that the next thing would be ‘sasi ku nyama’ meaning ‘bullet to flesh’. A2 introduced A8 as the expert in bullets. Those who could handle guns were selected and it was agreed with A8 that there was need to re-train them.</p> <p>PW30 also testified that a decision was made to make posters with the names of the problematic people and these were made and distributed. At yet another meeting, A8 informed them of the need for training. A8 also told them that the mission was to kill Sheikh Bahiga, Sheikh Kirya, Major Kiggundu, Umar Sadiq Ndawula and others. Many of the youths were scared and they communicated this to him. A2 then informed them that he would focus on Plan B. A8 communicated this plan which was to use ex-rebels. A4 and A8 were to select the team of ex­rebels to carry out the task. A8 repeatedly talked of a one Amir Kinene (A5) whom he wished to get.</p> <p>A decision was taken to use motorcycles in their missions. PW30assisted in the movement of one of them after purchase. Thereafter, PW30 informed Court that his group started to doubt him and labelled him a traitor. He was accused of revealing secrets to the rival group. A1, A4 and others confronted him and told him that they knew what he was doing which was tantamount to a betrayal. They warned him to be careful lest he is also taken.</p> <p>At a meeting with A2, A3 and A4, PW30 was informed how his name had come out on a list of the enemy and how he was left with only a few hours. This threat to his life deeply scared him.</p> <p>Defense conceded that evidence of previous threats is relevant and admissible but that no evidence of previous or present threats was adduced in the case. They submitted that the evidence of PW30 was fabricated and attributed it to the power struggles that rocked the Tabliq Muslim sect. It is worth noting that PW30 all along belonged to the A2 group and there was no evidence to the contrary. In the opinion of Court, this evidence was not denied and the defense submission nether discredited nor controverted it.</p> <p>Court findings: The sequence of events as narrated in the testimonies above point to the following:</p> <ul><li>The leaders A1, A2, A3 and A4 were aggressive in delivering death threats to PW22, PW28 and PW30. They were forceful, determined and persistent as they delivered the threats.</li> <li>Court finds that neither the death threats made by A1, A2, A3, and A4 nor their mode of delivery of the threats targeted a specific military objective.</li> <li>Court finds that the threats were delivered by word of mouth through preaching in the mosques, in meetings and on loudspeakers and affected many people both Muslims and non-Muslims alike hence indiscriminate. The law on oral evidence has already been discussed above.</li> <li>Court also finds that the attack on the character of the people named on the fliers to wit; Mustapha Bahiga, Umar Swadiq, Ibrahim Kirya, Mahmood Kibaate, Sudiq Ndaula and Omulangira Kassim Nakibinge tarnished their names in as far as the named were alleged to be a danger to the community and that they were to be avoided. The fliers were distributed in Kampala and beyond bringing into play the aggressive and indiscriminate nature of the conduct and mode of distribution. The evidence adduced pointed at A1, A3 and A7 as the ring leaders in the character assassination mission.</li> <li>Acid reaction to skin is most feared due to the adverse effects which are non-reversible. The Court of Appeal in Mbatudde Betty v Uganda Crim. App. No. 140/2004 [2010] UGCA 17 described acid related crimes as ‘barbaric and should not be tolerated in a civilized society’. This threat of acid delivered by A1, A2 and A4 as a mode of attack was part of the grand plan to systematically eliminate the enemy.</li> </ul><p>Issue 4: That the accused persons participated in the commission of the offence either by direct involvement or complicity.</p> <p>The fourteen accused persons are charged jointly with the offence of terrorism contrary to Section 7 (1) and (2) (b) of the Anti-Terrorism Act, 2002.</p> <p>Important general principles of law that are relevant to this issue: In a case of this nature (where many people are jointly charged and tried for committing a given offence) in a bid to determine their respective culpability, Court has a duty to handle the State's case against each of the accused persons separately and individually. If Court does not do so, but resorts to handling the matters in an omnibus way, that procedure could prejudice all the accused persons or some of them. Secondly, in a case of this nature, it is always advisable to bear in mind the contents of Section 20 of the Penal Code Act (Cap. 120). For the sake of clarity Court will lay them out below. They read as follows:</p> <p>20. Joint offender in prosecution of common purpose.</p> <p>“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”.</p> <p>The import of the above section is this: In a case of this nature (i.e. where many people are accused of committing a given offence; and it might also not be known who played what part in committing the said offence) proof of the fact that all the accused persons shared a common intention to execute an unlawful purpose is enough to establish their respective culpability. (See: Sunday Kala Alagba v The King 19 N. L. R. 128 (P.C. 1950) and Rex v. Dominiko Omenyi s/o Obuka 10 E.A.C.A. 81 quoted at pages 538 and 541 of ‘A Source book of the Criminal Law of Africa’ by Robert B. Seidman).</p> <p>Section 7(1) of the Anti-Terrorism Act clearly states that a person who engages in or carries out acts of Terrorism commits an offence.</p> <p>Court made a finding that the evidence of PW22 and PW28 regarding verbal or person to person death threats were made by A2 (Sheikh Muhamad Yunus Kamoga).</p> <p>Court also made a finding that the evidence of PW30 and PW28 regarding verbal or person to person death threats were made by A1 (Sheikh Siraje Kawooya), A3 (Sheikh Murta Mudde Bukenya) and A4 (Sheikh Fahad Kalungi).</p> <p>Court also made a finding that the evidence of PW29 and PW30 regarding threatened murder during meetings were made by A1 (Sheikh Siraje Kawooya), A2 (Sheikh Muhamad Yunus Kamoga), A3 (Sheikh Murta Mudde Bukenya), A4 (Sheikh Fahad Kalungi) and A8 (Sekayanja Abdul Salaam alias Kasimu Mulumba).</p> <p>Court also made a finding that the evidence of PW30 regarding threats of maiming through use of acid on adversaries during meetings were made by A1 (Sheikh</p> <p>Siraje Kawooya), A.2 (Sheikh Muhamad Yunus Kamoga), and A4 (Sheikh Fahad Kalungi).</p> <p>Court also made a finding that the evidence of PW15, PW22, PW26, PW27, PW28 and PW36 regarding character smudging hence actual attack on persons during meetings were made by A1 (Sheikh Siraje Kawooya), A3 (Sheikh Murta Mudde Bukenya) and A7 Kakande Yusuf alias Abdallah.</p> <p>The assessors seem not to have appreciated the import of the law and evidence on threats. This could be the reason why they advised court that prosecution had failed to prove any terrorism offence and that all the accused persons should be set free.</p> <p>Conclusion:</p> <p>In the course of reviewing the evidence above we found and held that the prosecution has failed to prove beyond reasonable doubt that any of the accused persons participated in commission of the offences in counts Nos. 2, 3 and 4 of the indictment. Therefore, we find all the accused not guilty on counts Nos. 2, 3, and 4 of the indictment and accordingly acquit all the accused on counts Nos. 2,</p> <ol><li>and 4.</li> </ol><p>Regarding count No. 1 of the indictment we find and hold that the prosecution also failed to prove beyond reasonable doubt that A5, A6, A9, A10, A11, A12, A13, and A14 participated in the commission of the offence in count No.1 of the indictment. Therefore, we find them not guilty and accordingly acquit them on count No. 1.</p> <p>Nevertheless, regarding count No.1 of the indictment we found and held that the prosecution proved beyond reasonable doubt that A1, A2, A3, A4, A7 and A8 committed, at various times, acts of terrorism like attacking the reputation/character and threatening murder of members of a rival faction of the</p> <p>Tabliq sect over the ‘Jamiya Daawa Asalafiya’ program. The acts were committed against members of the Muslim faith in at least one seminar at Masaka, in meetings at the homes of A1, A2 and at gatherings in various mosques at Nakasero, William Street in Kampala and elsewhere. The acts were intended to and actually intimidated members of the Muslim Community and the rest of the public. The acts were for political, religious, economic or social purposes. Consequently, we find A1, A2, A3, A4, A7 and A8 guilty of the offence of terrorism and accordingly convict them on count No. 1 of the indictment. We hereby acquit A5, A6, A9, A10, A11, A12, A13 and A14 of all the charges in the indictment and set them free forthwith unless they are held on other lawful charges.</p> <p>Dated at Kampala this 21<sup>st</sup> day of August, 2017.</p> <p>E. K. Muhanguzi                               P. N. Tuhaise                         J. F.B. Kiggundu</p> <p><a name="bookmark0" id="bookmark0">JUDGE                                              JUDGE                                  JUDGE</a></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>SENTENCE AND REASON FOR THE SAME</p> <p>Following conviction of accused Nos. 1, 2, 3, 4, 7 and 8 on 21<sup>st</sup> August, 2017 on the count of Terrorism, Ms Rachael Bikhole - PSA, learned counsel for the prosecution for DPP, submitted that:</p> <ol><li>The offence was committed meticulously with premeditation.</li> <li>Fear was instilled in the families and society at large.</li> <li>Victims were traumatized and they live in fear.</li> <li>Some of the victims listed on the fliers lost their lives.</li> <li>Victims’ character were attacked and tarnished.</li> <li>Security of victims and their families had to be beefed up.</li> <li>The threats linger on.</li> <li>The convicts are Muslim leaders, yet they orchestrated the crimes and were pivotal in the criminal enterprise.</li> </ol><p>In response, Counsel Fred Muwema for convicts Nos. 1, 2, 3, 4, 7, and 8 stated that the convicts were convicted for "just" for aspects of the offence of terrorism. However, he conceded that convicts were responsible and religious leaders of a big section of a tabliq sect with a very large following in Uganda. That the convicts have not been convicted on any direct evidence but on largely circumstantial evidence. That court acquitted them on the very serious crimes of murder and attempted murder. That the deceased are brothers in the Islamic faith. That convicts have been in detention for over two years for even offences for which they were found innocent. That their businesses, families and followers are suffering if they continue in incarceration. That those who were named on the fliers were many but only two testified. That the convicts committed minor threats not to a wider group but one or two who testified which could pass for threatening violence or defamation.</p> <p>That the convicts have no previous conviction in relation to this offence or offences of this nature. He prayed for any light sentence or even a caution since the whole case was based on wrangles for leadership and not terrorism as known with weapons. That this appears to be a “technical terrorism”.</p> <p>Upon consideration of the submissions from the prosecution and the defence, it is our view that terrorism is a very serious offence punishable by mandatory death sentence, where murder was committed and maximum death sentence, where no murder was committed.</p> <p>In this case no murder has been proved against the convicts. However, probably by coincidence, the very persons listed on the fliers that attacked their character and intimidated them were the same that were eventually killed, though by unknown assailants. The manner in which the offences were committed was very meticulous and aggressive. It was premeditated and planned in meetings, during preaching at mosques using loud speakers and at seminars using fliers. That was done, not on a one off occasion but over a period of time and at diverse places around Kampala and elsewhere.</p> <p>Consequently, as testified by witnesses like PW22, PW28, PW29 and PW30 fear, suspicion, divisions, rivalry and anxiety were instilled in the victims, tabliq sect members, the rest of the Muslim Community and the general public at large.</p> <p>With respect to defense counsel’s submissions, we do not agree that the convicts were convicted for "just" aspects of the offence of terrorism or that they were convicted on largely circumstantial evidence. They were convicted for the offence of terrorism on direct evidence. We agree with defence counsel that no evidence of previous conviction was availed and that the convicts have been on remand for about two years.</p> <p>On the other hand, it is our view that the convicts having been leaders and yet orchestrated the offence is an aggravating factor and not a mitigating factor. The convicts should have put all their leadership energies into preventing crimes. They should have channeled their efforts into developing the livelihood of the members of their organization and the tabliq sect as a whole.</p> <p>We note with concern that the prosecution appeared not to have obtained any victim impact statement or any community impact assessment and did not tender such statements to court to assist court arrive at the most suitable sentence.</p> <p>We have taken into account the period (about two years) the convicts have spent on remand. We have considered the fact that the convicts have families, the particulars of whom were not brought to courts’ attention.</p> <p>Terrorism is a very serious wide spread and traumatizing offence. It has attained global attention. It has devastating impact on individual, communities and in some cases on the environment. It is necessary to protect society from the perpetrators of this offence. The perpetrators deserve such a sentence as will keep them away from society and deter others who may be contemplating committing that offence.</p> <p>The maximum sentence prescribed by Section 7(1) (b) of the Anti-Terrorism Act being death sentence and the sentencing range for capital offences including terrorism, according to the Sentencing Guidelines, being between 35years and death, we think it appropriate to sentence the convicts as follows:</p> <ol style="list-style-type:lower-alpha"><li>Sheikh Siraje Kawooya, Sheikh Muhamad Yunus Kamoga, Sheikh Murta Mudde Bukenya and Sheikh Fahad Kalungi to life imprisonment for all their lives on earth because they are leaders who orchestrated the crime instead of being good role models.</li> <li>Kakande Yusuf alias Abudallah and Sekayanja Abdulsalam alias Kassim Mulumba to 30 years prison term because they were not leaders but just followers.</li> </ol><p>Dated at Kampala this 22<sup>nd</sup> day of August, 2017.</p> </div> <p> </p> <div> <p> </p> <p> </p> </div> <p> </p> <p>E.K. Muhanguzi JUDGE</p> <p>P.N. Tuhaise JUDGE</p> <p>J.F.B. Kiggundu</p> <p>JUDGE</p> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-600dfe0ff353a1a7ef43ad5eb3f3c5837223d40343de3e1b383092275aa91fca"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><div> <p>THE REPUBLIC OF UGANDA</p> <p> IN THE HIGH COURT OF UGANDA AT KAMPALA</p> <p> (INTERNATIONAL CRIMES DIVISION)</p> <p>CRIMINAL SESSION CASE No. HCT - 00 - ICD - CR - SC - No. 004 OF 2015</p> <p> UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION</p> <p>VERSUS</p> <p> A1: SHEIKH SIRAJE KAWOOYA</p> <p>A2: SHEIKH MUHAMAD YUNUSU KAMOGA</p> <p>A3: SHEKH MURTA MUDDE BUKENYA</p> <p> A4: SHEIKH FAHAD KALUNGI</p> <p>A5: AMIR KINENE</p> <p>A6: HAKIM KINENE MUSWASWA</p> <p> A7: KAKANDE YUSUF alias ABDALLAH</p> <p>A8: SEKAYANJA ABDUL SALAAM alias KASIMU MULUMBA</p> <p>A9: SEMATIMBA ABDUL HAMID MUBIRU</p> <p>A10: HAMUZA KASIRYE</p> <p> A11: TWAHA SSEKITTO</p> <p> A12: JJINGO RASHID</p> <p> A13: MUSA ISSA MUBIRU</p> <p>A14: IGA GEORGE WILLIAM ::::::::::::::::::::::::::::::::::::::::: ACCUSED</p> <p>(BEFORE: HON. MR. JUSTICE E.K. MUHANGUZI, J; HON. LADY JUSTICE P.N. TUHAISE; J. HON. LADY JUSTICE J.F.B. KIGGUNDU, J.)</p> <p>JUDGMENT OF THE COURT Brief background:</p> <p>The fourteen accused persons, namely:_A1: SHEIKH SIRAJE KAWOOYA, A2: SHEIKH MOHAMAD YUNUSU KAMOGA, A3: SHEKH MURTA MUDDE BUKENYA, A4: SHEIKH FAHAD KALUNGI, A5: AMIR KINENE, A6: HAKIM KINENE MUSWASWA, A7: KAKANDE YUSUF alias ABDALLAH, A8: SEKAYANJA ABDUL SALAAM alias KASIMU MULUMBA, A9: SEMATIMBA ABDUL HAMID MUBIRU, A10: HAMUZA KASIRYE, A11: TWAHA SSEKITTO, A12: JJINGO RASHID, A13: MUSA ISSA MUBIRU and A14: IGA GEORGE WILLIAM were, on 17/10/2016, jointly indicted on four counts (one of terrorism, two of murder and one of attempted murder).</p> <p>In count No. 1, relating to the offence of terrorism, it was alleged in the particulars of the offence that Sheikh Siraje Kawooya, Sheikh Mohamad Kamoga, Sheikh Murta Mudde Bukenya, Sheikh Fahad Kalungi, Amir Kinene, Hakim Kinene Muswaswa, Kakande Yusuf alias Abdallah, Sekayanja Abdulsalam alias Kassim Mulumba Sematimba Abdulhamid Mubiru, Hamza Kasirye, Twaha Sekkito, Jingo Rashid, Musa Issa Mubiru and Iga George William and others still at large, between December 2013 and June 2015 in Kampala and Wakiso Districts, with intent to intimidate the public or a section of the public and for a political, religious, social, or economic aim, indiscriminately and without due regard to the safety of others or property, directly involved themselves or were complicit in the attempted or threatened murder or attack on Ssonko Najib, Bayiga Mustafah, Umar Swadiq, Ibrahim Hassan Kirya, Mahmood Kibaate, Haruna Jemba and Omulangira Kassim Nakibinge who were members in a public or private institution.</p> <p>In count No. 2, relating to the offence of murder to the prejudice of Sheikh Mustafa Bahiga, it was alleged in the particulars of the offence that Sheikh Siraje Kawooya, Sheikh Muhamad Yunus Kamoga, Sheikh Murta Mudde Bukenya, Sheikh Fahad Kalungi, Amir Kinene, Hakim Kinene Muswaswa, Kakande Yusuf alias Abdallah, Sekayanja Abdulsalam alias Kassim Mulumba, Sematimba Abdulhamid Mubiru, Hamza Kasirye, Twaha Sekkito, Jingo Rashid, Musa Issa Mubiru, Iga George William and others at large, on the 28<sup>th</sup> December, 2014 at Bwebajja in the Wakiso District, with malice aforethought unlawfully caused the death of SHEIKH MUSTAFA BAHIGA.</p> <p>In count No. 3, relating to the offence of murder to the prejudice of Sheikh Hassan Ibrahim Kirya, it was alleged in the particulars of the offence that Sheikh Siraje Kawooya, Sheikh Mohamad Yunus Kamoga, Sheikh Murta Mudde Bukenya, Sheikh Fahad Kalungi, Amir Kinene, Hakim Kinene Muswaswa, Kakande Yusuf alias Abdallah, Sekayanja Abdulsalam Alias Kassim Mulumba, Sematimba Abdulhamid Mubiru, Hamza Kasirye, Twaha Sekkito, Jingo Rashid, Musa Issa Mubiru, Iga George William and others still at large, on the 30<sup>th</sup> of June 2015, at Bweyogerere Trading Centre in the Wakiso District, with malice aforethought unlawfully caused the death of SHEIKH HASSAN IBRAHIM KIRYA.</p> <p>In count No. 4, relating to the offence of attempted murder to the prejudice of Sheikh Dr. Haruna Jemba, it was alleged in the particulars of the offence that Sheikh Siraje Kawooya, Sheikh Mohamad Yunus Kamoga, Sheikh Murta Mudde Bukenya, Sheikh Fahad Kalungi, Amir Kinene, Hakim Kinene Muswaswa, Kakande Yusuf Alias Abdallah, Sekayanja Abdulsalam alias Kassim Mulumba, Sematimba Abdulhamid Mubiru, Hamza Kasirye, Twaha Sekkito, Jingo Rashid, Musa Issa Mubiru, Iga George William and others still at large, on the 3<sup>rd</sup> January 2015, at Wattuba, Matugga in the Wakiso District attempted unlawfully to cause the death of SHEIKH DR. HARUNA JEMBA.</p> <p>Each count was separately read out and translated from English to Luganda languages for the benefit of the accused. Each accused denied the charge and court accordingly entered on record a plea of not guilty for each accused in respect of each count separately.</p> <p>Court then interviewed and swore in three assessors to act as assessors during the trial.</p> <p>Representations and Court Officials:</p> <p>The Prosecution team from the office of the Director of Public Prosecutions included:</p> <ol><li>Mr. Anguzu Lino, Principal State Attorney;</li> <li>Mr. Thomas Jatiko, Principal State Attorney;</li> <li>Ms. Rachel Bikhole, Principal State Attorney;</li> <li>Ms. Marion Ben- Bella, State Attorney.</li> </ol><p>Defence teams included:</p> <ol><li>Mr. McDosman Kabega, for Accused Nos. 5 and 6 on private brief;</li> <li>M/s. Fred Muwema, Kagoro Friday Roberts, Twaha Mayanja, Kagoya Allen and Charles Nsubuga for A1, A2, A3, A4, A7, A8, A9, A10, A11, A12, and A13 on private brief;</li> <li>Ms. Namawejje Sylivia Ebitu for A14 on State brief.</li> </ol><p>Assessors:</p> <ol><li>Ms. Muhairwe Judith</li> <li>Mr. Ddumba Ahmed</li> <li>Mr. Lubega Robert Seguya.</li> </ol><p>Court Clerks/ Interpreters:</p> <ol><li>Mr. Cornelius Kiyuba</li> <li>Ms Mukhaye Lillian</li> </ol><p>Mr. Anguzu Lino, Principal State Attorney, for the prosecution informed court and Mr. Muwema Fred, for the defence, confirmed that the prosecution and defence teams had agreed at the pre-trial proceedings on the following facts and issues which they wished to adopt at the trial, namely:</p> <ol style="list-style-type:upper-alpha"><li>Agreed Facts</li> </ol><ol><li>That the late Sheikh Mustafa Bahiga is dead.</li> <li>That the late Sheikh Mustafa Bahiga died on the 28th December, 2014 while in transit to Kibuli hospital.</li> <li>Post Mortem was done at Mulago Hospital Mortuary on the body of the deceased (Sheikh Mustafa Bahiga).</li> <li>That Sheikh Mustafa Bahiga’s death was caused unlawfully with malice aforethought.</li> <li>That Sheikh Hassan Ibrahim Kirya is dead.</li> <li>That Sheikh Hassan Ibrahim Kirya died on the 30<sup>th</sup> June, 2015.</li> <li>That Sheikh Hassan Ibrahim Kirya’s death was caused unlawfully and with malice aforethought.</li> <li>The accused persons were arrested by the police, charged and indicted to High Court for trial.</li> </ol><ol style="list-style-type:upper-alpha"><li>Agreed Issues:</li> </ol><ol><li>On count No. 1 of Terrorism contrary to Section 7 (1) and 2 (b) of the Anti-Terrorism Act, Act No. 14 of 2002:</li> </ol><ol style="list-style-type:lower-alpha"><li>Whether there was actual, attempted or threatened murder, maiming or attack on a person or group of persons in a public or private institution.</li> <li>Whether the acts in a) above were for purposes of intimidating the public or a section of the public and for a religious, political, social or economic aim.</li> <li>Whether the acts in a) above were committed indiscriminately without due regard to the safety of others or property.</li> <li>Whether the accused persons participated in the commission of the offence either by direct involvement or complicity.</li> </ol><ol><li>On count No. 2 of murder contrary to Sections 188 and 189 of the</li> </ol><p>Penal Code Act, (Cap. 120):</p> <p>a) Whether the accused persons participated in unlawfully causing the death of Sheikh Mustafa Bahiga.</p> <ol><li>On count No. 3 of murder contrary to Section 188 and 189 of the</li> </ol><p>Penal Code Act, (Cap.120):</p> <p>a) Whether the accused persons participated in unlawfully causing the death of Sheikh Ibrahim Hassan Kirya.</p> <ol><li>On count No. 4 of attempted murder contrary to Section 204 of the</li> </ol><p>Penal Code Act, (Cap.120):</p> <ol style="list-style-type:lower-alpha"><li>Whether there was an intention to cause the death of Sheikh Dr. Haruna Jjemba.</li> <li>Whether that intention was manifested by overt acts.</li> <li>Whether the accused persons participated in the commission of that offence</li> </ol><p>General Issue:</p> <p>Whether the accused persons had a common intention to commit any of the above.</p> <p>THE LAW:</p> <p>The burden and standard of proof:</p> <p>In all criminal cases, except a few statutory ones not including the offences now before court, an accused person is presumed innocent until proved or unless he/she pleads guilty. The burden of proving the charge is upon the prosecution throughout the trial to prove every essential ingredient of the offence beyond reasonable doubt and that burden never shifts to the accused. [See:</p> <ol><li>Woolmington vs. D.P.P. [1935] A.C. 462;</li> <li>Miller vs. Minister of Pensions (1947) 2 All E.R. 372 at page 373-374 per Lord Denning;</li> <li>Okethi Okale &amp; Ors. vs. Republic [1965] E.A. 555;</li> <li>Lubogo &amp; Ors. vs. Uganda [1967] E.A. 440;</li> <li>Joseph Kiiza &amp; Ors. vs. Uganda [1978] HCB 279].</li> </ol><p>THE EVIDENCE:</p> <p>To prove the four charges in the indictment the prosecution called a total of thirty- six (36) witnesses, several of whom gave very long testimonies. Three of those witnesses, by consent of prosecution and defence, were allowed to testify under pseudo names. We shall not reproduce verbatim the evidence of each witness in this judgment because of the big number of witnesses and the extensive length of the evidence of many of them. We shall, however, consider all the evidence and weigh it against the law in order to arrive at conclusive findings and holdings in this case. Suffice it, for now, to set out below a list of the witnesses and the gist of the evidence of each of them as follows:</p> <ol><li>Samuel Sasya (PW1), a 49 years old medical clinical officer who examined Mudde Bukenya, Mohamed Kamoga and Kalungi Fahad on 21/01/2015 and issued reports in exhibits P12, P13 and P15.</li> <li>No. 56710 D/C Akankwasa Anthony (PW2), a 30 years old Police Officer, who went with ASP Bwire Susan to Bwebajja Mosque and cordoned off the scene of crime;</li> <li>Kabahinda Elizabeth Sanyu (PW3), a 37 years old Medical Billing Clerk at Namulundu Medical Centre, Bwebajja who heard the deceased say: “Kamoga is this what you have decided to do? Let me die for my religion."</li> <li>Dr. Moses Byaruhanga (PW4), a 42 years old Medical Officer Pathologist, who did Postmortem examination on late Mustapha Bahiga on PF24 dated 29/12/2014 (exhibit P.4) and on late Hassan Kirya on PF24 dated 01/7/2015 (Exhibit P5).</li> <li>Asiku Denis (PW5) a 30 years old Medical Clinical Officer at Mayfair Clinic at Najjanankumbi, Entebbe Road who examined Iga George William alias Hamza on 18/8/2015 on PF24 (Exhibit P6).</li> <li>Mujahiid Mustapha Bahiga (PW6), an 18 years old student of Mbogo College School at Kawempe, son of late Mustapha Bahiga who, on 28/12/2014, was with late Mustapha Bahiga the whole day up to the shooting and heard his father state: “Kamoga onzise” in Luganda meaning “Kamoga you have killed me,” (See: Police Statement (Exhibit D1)).</li> <li>Dr. Nuwamanya Emmanuel (PW7), a 43 years old Medical Officer, based at Police Headquarters Officer at Nsambya, who examined Sekayanja Abdu Salaam Mulumba Kassim, Sematimba Abdul Hamid Mubiru, Jingo Rashid, Twaha Sekitto, Kakande Yusuf, Musa Isa Mubiru and Sheikh Siraje Kawooya all on PF24 on 18/01/2015 (See: Exhibits P.7, 8, 9,10, 11 and 13).</li> <li>Serunjogi Wilson (PW8), a 40 years old resident of Kitende, Bwebajja who witnessed 2 men on a motor cycle around 7.00p.m at the Mosque shooting at a Noah car that was parked at the mosque.</li> <li>Madrama Charles (PW9), a 50 years old Medical Officer, who examined Kinene Amir on 22/1/2015 on PF24 dated 21/1/2015 and Kinene Akim Muswaswa on 22/1/2015 [See: PF24 Exhibits P14 and 15].</li> <li>Robinah   Kirinya (PW10), a 54 years old Senior Government Analysist in Ballistics, based at the Government Analytical Laboratories at Wandegeya, who authored a report dated 09/01/2015 relating to 6 spent cartridges that were submitted by D/IP Byamugisha Fulgensia in respect of Kajjansi Police CRB 818/2014 to the laboratory for examinations [See: Exhibit P16], another report dated 22/9/2015 in respect of Bweyogerere Police Station CRB 148/2015 and a 3<sup>rd</sup> report dated 01/10/2015 relating to Kajjansi CRB 818/2014. [See: Exhibits P16, P17 and P18]. She also authored an additional report on 01/10/2015 in respect of Bweyogerere CRB 148/2015 [See: Exhibit P19].</li> <li>Dr. Muwema Emmanuel Natosh (PW11), a 28 years old Medical Officer who, on 28/12/2014 at Namulundu Health Centre IV, attended to a wounded Mustapha Bahiga but referred him to Mulago Hospital. He heard his patient state:</li> </ol><p>“Bankubye amasasi naye ngenda kufiira diini yange” (Luganda),</p> <p>“I have been shot but I am going to die for my religion” (English).</p> <ol><li>No.19426 D/Sgt. Birungi Jane Barbara (PW12), a 45 years old police officer attached to Kajjansi Police Station as Division Scenes of Crime Officer (SOCO), who, on 28/12/2014 recovered 6 spent cartridges from the scene at the mosque at Bwebajja in respect of Kajjansi CRB 818/2014 (Exhibits P20, P21 and 22) and made a sketch plan of the scene (Exhibit P23).</li> <li>No. 22638 Sgt. Obatai John (PW13), a 49 years old Police Officer of Naguru Police Barracks attached at Bweyogerere Police Station as Political</li> </ol><p>Commissar who, on 30/6/2015, picked both Hassan Ibrahim Kirya’s body and another body from Bweyogerere at the Kampala/Jinja Road fly­over and took them to Mulago Hospital.</p> <ol><li>Afuwa Namugenyi (PW14), a 55 years old market vendor at Bweyogerere Taawo who, on 30/6/2015 was trying to sell fruits to Sheikh Hassan Kirya at about 10.00pm when suddenly there was a lot of gun shots that killed the late Hassan Kirya.</li> <li>Haruna Jemba Abdul Hamid Katungulu (PW15), a 60 years old teacher of Religion and Peace Studies at Makerere University, one of the lead preachers originally at the Nakasero Mosque and Executive Committee Member with Muhamad Yunus Kamoga, late Abdul Hakim Sekimpi, late Kirya, late Bahiga and others numbering to 20. Their organization split into 2 rival groups. On 03/01/2015 his home at Wattuba, Mattuga, Wakiso District was attacked by unknown gun men between 3.30am and 4.00am in the night.</li> <li>No. 40622 D/C Wafana Rogers (PW16), a 32 years old policeman attached to Wandegeya Police Station, who visited the scene at Jokolera village with ASP Buyondo, D/IP Kusimirwa Charles and other police personnel and collected 8 cartridges and drew Sketch Plan (Exhibit P24).</li> <li>No. 39996 D/CPL Lule Moses (PW17), a 33 years old police officer of Natete police Barracks, who together with O/C CID, D/AIP Kusingura Charles, on 03/01/2015 went to the home of Sheikh Haruna Jemba at Wattuba around 10.45am. He, as SOCO, cordoned off and protected the scene recovered 5 empty cartridges, one SMG serial No.48009311 from a policeman, one projectile and took photographs of the exhibits at the home and made an exhibit slip (Exhibit P25). Photographs are exhibit P26, SOCO report is Exhibit P27.</li> <li>D/ASP Kusingura Katsimbura Charles (PW18), a 47 years old Police officer who, on 03/01/2015, went to Wattuba Village at Haji Jemba’s residence and instructed PW17 as SOCO of that scene. He took over from PW17 all exhibits at Mattuga Police Station on PF17A and took them to the Government Analytical Laboratory for examination (Exhibit P28).</li> <li>Mubiru Ben (PW19), a 28 years old Health Practitioner of Market Street Medical Clinic who, on 01/7/2015, examined Kenneth Rono on PF3 (Exhibit P.29).</li> <li>Kenneth Rono (PW20), a 33 years old Trailer Turn Boy who, in the night of 30/6/2015, was injured when gunmen shot at the Motor Vehicle he was travelling in near Mukono Police Station and the glasses were shuttered and injured his left eye.</li> <li>Semakula Isma (PW21), a 20 years old, chicken Roaster at Bweyogerere Fly</li> </ol><p>over and Trading Centre who, on 30/6/2015, at about 10.00pm was shot in the leg in the midst of heavy gun fire at the fly over.</p> <ol><li>Haji Yasin Kakomo (PW22), a 54 years old trader of Kyazanga and Masaka in Lwengo and Masaka Districts who was part of the Tabliq Sect with the late Mustapha Bahiga and the late Hassan Kirya since 1988 and 1994 respectively and Yunus Kamoga since 1983. He witnessed and attempted to mediate the wrangles involving the said leaders of the Tabliq Sect. that Kamoga told him in reference to late Bahiga’s group:</li> </ol><p>“....... I was tired and not going to accept anything that was going to</p> <p>divide Muslims............... even if it meant killing I can kill, those are joking</p> <p>and have never killed but for me even if it is during daylight I can kill".</p> <ol><li>SSP Odong Mark Paul (PW23), a 36 years old police officer who, on 12/01/2015, recorded a statement from the late Sheikh Hassan Kirya on instructions of D/SSP Ogwang Julius, deceased.</li> <li>No. 58831 D/C Mutono Geoffrey (PW24), a 30 years old police officer who, on 30/6/2015 went with a team to Bweyogerere Crime Scene where late Hassan Kirya had been shot, cordoned off the scene, took photographs, recovered bullet casings and projectiles, labeled and packaged them and handed them over to D/C Agwang Winnie, the evidence custodian at the scene.</li> <li>Zeena Mugubil (PW25), a 42 years old resident of Jinja Plot 11/3 Main Street, retail shop operator who, sometime in June 2015, rented out shop premises for 3 months at Ugx. 300,000/= per month and also residential premises at Mafubira 4 miles from Jinja town at Ugx. 150,000/= per month for 4 months (Ugx. 600,000/=) which they paid in advance on top of the shop premises for 3 months at Ugx. 300,000/= per month (Ugx. 900,000). Those tenants were Akim and Amir whom she identified in Court.</li> <li>Semwanga Lutaaya Badru (PW26), a 58 years old employee of UBC as News Anchor and translator/Interpreter from English into Luganda. In June 2016 he translated 2 fliers that had photos of people on them from Luganda into English (Exhibit P35 and P36).</li> <li>D/ASP Muramira Patrick (PW27), a 40 years old Police Officer who, in December 2014 acted as the arresting officer on instructions of SSP Agasirwe Nixon on 29/12/2014 to arrest seven suspects in connection with the killing of Moslem Clerics in Kampala. He arrested them and one of them Amir Kinene allegedly, on 09/01/2015 mentioned his accomplices, who were also subsequently arrested on various dates and from various locations.</li> <li>“A” (pseudonym) (PW28), a 50 years old businessman of Makindye, Kampala who identified A1, A2, A3, A4 A7, A9, A12 and A13 in Court as fellow Muslims he knew for various periods since the 1990s. He knew late Mustapha Bahiga since 1994 till his death in 2014 and Hassan Kirya since 1994 till death in 2015.</li> <li>“B” (Pseudonym) (PW29), a 30 years old businessman of Kibuye, Makindye Kampala who towards end of 2011 together with several of the accused and others numbering to 40 or more attended several meetings at Sheikh Kawooya’s home along Gayaza road with the objectives of changing the leadership of this organization “Jamuhiyata Daawa Asalafiya”. He stated that Sheikh Kawooya said:</li> </ol><ol><li>“Sheikh Bahiga is like a snake in the saucepan and if you didn’t kill it you cannot eat.”</li> <li>“You creatures, you have forgotten that we are the ones who hold your lives, should we release these young ones?”</li> </ol><p>Further that Kawoya told him on 25/4/2012:</p> <p>“Those are just talking, for us we have guns here."</p> <p>“Those people should not joke with us."</p> <ol><li>“C” (Pseudonym) (PW30), a 34 years old businessman resident of Nansana, near Kawempe Division who stated that he was acquainted with the leadership of the Moslem sect at the William Street Mosque since 2003 onwards. He knew about the disagreements and breakup leading to division into two groups led by a) Kamoga and b) Jemba in 2011. He was on Kamoga’s side and mobilized with Murta Bukenya to protect Kamoga’s leadership against any attempt to take over leadership from Kamoga.</li> </ol><p>Following the shooting dead of Sheikh Abdul Karim Sentamu at William Street Mosque Kamoga stated at a meeting:</p> <p>“What I told ---------- would stop us from reaching our target has just</p> <p>started happening.”</p> <p>Kamoga also stated: “That only four people were remaining hindering our way, namely:</p> <ol><li>Mustapha Bahiga</li> <li>Hassan Ibrahim Kirya</li> <li>Mohammed Kiggundu, a Major in UPDF.</li> <li>Umar Sudik Ndaula, Muhammed Kibaate, Haji Jamil Kiddu, and others to be identified later)”.</li> </ol><p>Further that in the year 2014 at a meeting at Sheikh Kawooya’s residence at Gayaza Road, attended by: Murta Bukenya, Fahad Kalungi, Hamidu Mbaziira, Sheikh Kawooya and others</p> <ol><li>D/AIP Ntende Godfrey (PW31), a 35 years old Police Officer attached to Counter-Terrorism and Intelligence Investigation.</li> </ol><p>On 28/7/2015 he arrested Hamza Jafari Kasirye at his home at Ddegeya, Mbirizi in Lwengo District for the reason that Kasirye used his phone no.0703-427-176 to send threatening messages to Najib Ssonko. He conducted a search, recovered some exhibits and made a search certificate.</p> <ol><li>D/Sgt. Kamuntu Herbert (PW32), a 33 years old Police Officer who, on 09/01/2015, arrested Sematimba Abdul Hamid from Owino Market and took him to CPS, Kampala where he handed him over to SSP Ogweng.</li> <li>D/SSP Kanalo Stephen (PW33), a 59 years old police officer who, on 29/01/2016, arrested Isa Musa Mubiru from Entebbe International Airport, told him the reason for arrest and escorted him to Kireka SID where he handed him to the Director, CID Musana who instructed him to take him to Nalufenya police station.</li> <li>Kabera Francis (PW34), a 38 years old Security Manager, Airtel Uganda Ltd who, on 02/02/2016 issued a call Data Record (CDR) document in respect of No. 256 753 742 181 of 4 pages (Exhibit P37).</li> <li>D/AIP Mpamizo Kanyomozi (PW35), a 48 years old Police Officer who, on 8/01/2015, was instructed to join the team of investigators of the murders of Muslim Clerics. On 11/01/2015 Amir Kinene, a suspect, led that team to his rented house at Mafubira in Jinja where 2 others, Muswaswa and Muzafari were found and arrested. A search was conducted at the house and a certificate was made (Exhibit P38). On 12/08/2015 he went to CMI Headquarters at Mbuya and re-arrested Iga George William and made a statement dated 15/3/2015 (exhibit D7).</li> <li>D/IP Byamugisha Fulgence (PW36), a 44 years Police Officer who, on 31/12/2014 collected a Post Mortem Report, relating to death of Sheikh Mustapha Bahiga, from Mulago Hospital. He interviewed Sheikh Bahiga’s family members, various witnesses, including the Sheikh’s 2<sup>nd</sup> widow, the sister Mbabazi Zahuya who gave him a flier containing names of Sheikh Kibaate, Sheikh Kirya, etc. While searching the home of Abdul Kassim Sekayanja, 3 people travelling in a Motor Vehicle UAN 460T Toyota Ipsum, Siraji Kawooya, Sekito Twaha and Rashid Jingo, confronted them as brothers to Abdul Sekayanja and were arrested and detained at Katwe police station on 06/01/2015. He made a statement dated 29/02/2016 (Exhibit D8).</li> </ol><p>At the close of the evidence for the prosecution court ruled that prosecution had</p> <p>established a prima facie case against the accused on all four counts of the</p> <p>indictment and therefore informed the accused of the options available to them under the law relating to their defence. In turn, the accused persons elected to exercise their constitutional right to not offer any defence.</p> <p>In the circumstances, court had to rely entirely on prosecution evidence to decide all issues in this case.</p> <p>REVIEW OF THE EVIDENCE:</p> <p>The offences in counts Nos. 2, 3 and 4 are components of the offence in count No.1 of the indictment under consideration in this case. For this reason, we deemed it logical and expedient to resolve, firstly count No. 2, secondly No. 3, thirdly count No.4 and lastly count No. 1.</p> <p>COUNT NO. 2: Murder contrary to sections 188 and 189 of the Penal Code Act, (Cap. 120) in relation to the late Sheikh Mustafa Bahiga.</p> <ol style="list-style-type:lower-alpha"><li>The offence of Murder, contrary to sections 188 and 189 of the Penal Code Act, (Cap. 120), which is the subject of counts Nos. 2 and 3 of the indictment has four essential ingredients all of which the prosecution has to prove beyond reasonable doubt. Even when the defence does not contest or concedes to any one or more of the above ingredients as having been sufficiently proved the court has the duty to evaluate the evidence and make a finding that such ingredient has or has not been so proved (Mawanda Edward Vs. Uganda, SC. Crim. Appeal No. 4/1999, unreported).</li> </ol><p>According to Section 188 of the Penal Code Act, (Cap.120):</p> <p>“Any person who of malice aforethought causes the death of another person by an unlawful act or omission commits murder. ”</p> <p>Therefore, the four ingredients of the offence of murder, as specified in the case of Uganda Vs Kassim Obura [1981] HCB 9 are, namely:</p> <ol><li>Death of the deceased named in the indictment;</li> <li>Death having been caused unlawfully (Gusambizi s/o Wesonga Vs. R.</li> </ol><ol><li>15 EACA 65);</li> </ol><ol><li>Malice aforethought having prompted the death (R. Vs. Tubere [1945] 12 EACA 63);</li> <li>Participation of the accused (Bogere Moses &amp; Anor. Vs. Uganda, SC. Crim. Appeal No. 1/1997, ISCD (CRIM) 1996-2000)</li> </ol><p>On this count, the prosecution relied, firstly, on the agreed facts above, namely;</p> <ol><li>That the late Sheikh Mustafa Bahiga is dead.</li> <li>That the late Sheikh Mustafa Bahiga died on the 28<sup>th</sup> December, 2014 while in transit to Kibuli Hospital;</li> <li>Post mortem was done at Mulago Hospital Mortuary on the body of the deceased (Sheikh Mustafa Bahiga); and</li> <li>That Sheikh Mustafa Bahiga’s death was caused unlawfully with malice aforethought.</li> </ol><p>Secondly, prosecution relied on the evidence of: Mujahid Mustafa Bahiga (PW6) who witnessed the shooting of the deceased at the mosque at Bwebajja; Dr. Muwema Emmanuel Natosh (PW11) Who Attended to the wounded Mustafa Bahiga at Namulundu Health Centre IV on the28/12/2014 and also referred him to Mulago Hospital but heard the patient state:</p> <p>“Bankubye amasasi naye ngenda kufiira ediini yange” (Luganda) meaning:</p> <p>“I have been shot but I am going to die for my religion”;</p> <p>Kabahinda Elizabeth Sanyu (PW3) a medical billing clerk at Namulundu Medical Centre, Bwebajja, who testified that she heard the deceased state:</p> <p>"Kamoga, is this what you have decided to do? Let me die for my religion" and Dr. Moses Byaruhanga (PW4), a Medical Officer and Pathologist who, on 29/12/2014 performed a post mortem examination on the body of the late Mustafa Bahiga and issued a report (Exhibit P5) dated 29/12/2014. He found gunshot wounds on the chest, lip, waist, hand, rib, right lung, liver, diaphragm, colon and certified cause of death as gunshot injuries and described them as “close gunshot injuries”.</p> <p>On the basis of the above evidence we are satisfied and find and hold that the prosecution proved beyond reasonable doubt the first three essential ingredients of the offence of murder, namely:</p> <ol><li>That Sheikh Mustafa Bahiga died (Exhibit P5);</li> <li>That the death of Sheikh Mustafa Bahiga was unlawfully caused because it was neither accidental nor lawfully authorized, such as in execution of a death sentence (Gusambizi s/o Wesonga V. R supra);</li> <li>That the shooting at close range and injuring the chest and vital internal organs such as the Lung, liver, colon and diaphragm was definitely actuated by malice aforethought (R. vs. Tubere (1945) 12 EACA 68, supra).</li> </ol><p>However, we are satisfied and find and hold that no single prosecution witness identified either the assailants or recovered the killer weapon at the time and at the scene of the crime. Consequently, the prosecution did not place any of the accused persons at the scene or time of the crime (Bogere Moses &amp; Anor. vs Uganda, SC. Crim. App. No. 1/1997, supra).</p> <p>Instead, other evidence on record shows that two un-identified assailants were seen at the scene at the time of the shooting and immediately after the shooting they jumped on a motor cycle and rode away. The assailants were never arrested and the killer gun and the motor cycle were never recovered. If and how any of the fourteen accused participated in causing the death of Mustafa Bahiga appears to us not clear.</p> <p>Consequently, substantial doubt was cast in the prosecution case, particularly regarding the fourth essential ingredient of participation of any of the accused persons in commission of the offence in count No.2 of the indictment.</p> <p>Nevertheless, the prosecution relied exclusively on circumstantial evidence to prove the fourth essential ingredient in count No. 2, namely: participation of the accused in commission of the offence, which we shall shortly revert to as we review the evidence relating to counts Nos. 3 and 4.</p> <p>COUNT NO. 3: Murder of Sheikh Hassan Ibrahim Kirya contrary to Sections 188 and 189 of the Penal Code Act, (Cap.120).</p> <p>Regarding the murder of the late Sheikh Hassan Ibrahim Kirya, prosecution relied, firstly, on other agreed facts also earlier outlined above, namely:</p> <ol><li>That Sheikh Hassan Ibrahim Kirya is dead.</li> <li>That Sheikh Hassan Ibrahim Kirya died on the 30<sup>th</sup> June 2015;</li> <li>That Sheikh Hassan Ibrahim Kirya’s death was caused unlawfully and with malice aforethought.</li> <li>The accused persons were arrested by police, charged and indicted to High Court for trial in respect of the deaths of both Sheikhs Bahiga and Kirya.</li> </ol><p>In addition, prosecution also adduced evidence of Afuwa Namugenyi (PW14), a 55 years old Market Vendor of Bweyogerere Taawo, who on 30/6/2015, witnessed a lot of gunshots that killed the late Sheikh Hassan Kirya ; No. 22638 sgt. Obatai John (PW13), a 39 years old Police Officer who picked the body of the late Hassan Ibrahim Kirya and another one from Bweyogerere at Kampala/Jinja Road fly-over and took them to Mulago Hospital as well as Dr. Moses Byaruhanga (PW4), a Medical Officer and Pathologist who performed a Post-Mortem examination on the body of the late Hassan Ibrahim Kirya on 01/7/2015 and issued a report (Exhibit P5) dated 01/07/2015. In that report the pathologist showed the followings findings:</p> <ol><li>Gunshot wounds on the back, anterior chest, thigh, right buttock, waist, left pectoral muscles, ribs, vertebral column, thoracic aorta, heart, roots of all the great vessels of the heart, left diaphragm and stomach;</li> <li>Fractured lateral “barder” of T.12, Hemorrhagic froth in the airway, pale abdominal organs, heamatoma in the muscles of the right thigh with lacerated femoral blood vessels.</li> </ol><p>He certified the cause of death to be multiple gunshot injuries.</p> <p>Upon careful consideration of the above evidence we are satisfied and we find and hold that the prosecution proved beyond reasonable doubt the first three essential ingredients of murder, namely:</p> <ol><li>The death of Sheikh Hassan Ibrahim Kirya on 30/6/2015 (Exhibit P5);</li> <li>That Sheikh Hassan Ibrahim Kirya’s death was caused unlawfully as his shooting was neither accidental nor authorized by law, such as in execution of a death sentence imposed by a court of law (Gusambizi s/o Wesonga, supra);</li> <li>The multiple gunshot wounds on the chest and other parts of the body that injured vital organs of the body indicated malice aforethought on the part of the assailants (R vs. Tubere, supra).</li> </ol><p>However, as the assailants and the killer guns were neither identified nor recovered at the time and scene of the crime by any of the prosecution witnesses, we were unable to find any direct evidence placing any of the accused persons at the time and scene of the crime (Bogere Moses &amp; Anor. Vs. Uganda, supra).</p> <p>The circumstances surrounding this death on 30/6/2015 were similar to those surrounding the death of Sheikh Mustafa Bahiga on 28/12/2014 in that prosecution witnesses only saw and heard un-identified assailants shooting their victims and immediately after the shooting the assailants rode away on motor cycles. If and how any of the fourteen accused participated in the murder of Hassan Ibrahim Kirya remained unclear to us.</p> <p>That, in our view, is a source of substantial doubt in the prosecution case on count No. 3 of the indictment.</p> <p>COUNT NO. 4: Attempted Murder Contrary to Sections 204 (a) of the Penal Code Act in relation to Dr. Haruna Jjemba.</p> <p>In relation to this count of the indictment, the prosecution had the burden of proving beyond reasonable doubt three essential Ingredients, namely:</p> <ol><li>That there was established an intention to cause the death of Dr. Haruna Jjemba;</li> <li>That the intention was manifested in overt acts;</li> <li>That the accused persons directly or indirectly participated in the commission of that offence.</li> </ol><p>That burden remained on the prosecution and did not shift to the accused throughout the trial.</p> <p>To discharge that burden, especially in relation to the fourth essential ingredient regarding participation of the accused in the commission of the offence, the prosecution relied, exclusively, on circumstantial evidence.</p> <p>In a case depending exclusively upon circumstantial evidence, the court must find, before deciding on conviction that inculpatory facts were incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt, as stated in the case of R vs. Kipkering Arap Koske &amp; Anor.</p> <ol><li>16 EAC135. That statement was adopted with approval in Simon Musoke vs. R [1958] E.A. 715. The same statement was reaffirmed by the Supreme Court of Uganda in the case of Mureeba Janet &amp; Others vs. Uganda, SCCA No. 13 of 2003.</li> </ol><p>While dealing with circumstantial evidence the prosecution made extensive submissions detailing various specific pieces of evidence relating to dying declarations, grudges between the accused and the victims, Previous Threats, Fliers, Planning Meetings, Peculiar circumstances of the killings, Telephone records, and Conduct of Accused Persons. The effort of the prosecution was aiming at proving participation of the accused persons in the commission of the offences in the indictment under consideration. We shall endeavour to analyse that evidence now as well as when dealing with count no.1 relating to terrorism.</p> <ol><li>Dying Declarations:</li> </ol><p>We have carefully considered the aspect of dying declarations with particular reference to the evidence of PW4, PW6 and PW11 concerning the alleged words spoken by the late Mustafa Bahiga in his dying moments. More detail on this evidence is stated in the section concerning count no.1 relating terrorism. Suffice it to state now that we find and hold that there were inconsistencies and contradictions in that evidence. There was no corroborating evidence to support it also. For that reason we are unable to accept that evidence as a dying declaration.</p> <p>We also carefully considered the evidence of PW23 and exhibit P30. The evidence of PW23 was simply that he recorded a statement from Hassan Ibrahim Kirya. The contents of that statement (P30) were not his evidence and the maker of that statement was not able to testify and the veracity of the contents of that exhibit could not be tested through cross examination. Therefore, we find and hold that exhibit P30 did not qualify as dying a declaration and accordingly reject it.</p> <ol><li>Grudges between the accused and the victims:</li> </ol><p>Prosecution adduced evidence of PW15, PW22, PW28, PW29 and PW30 who testified to the effect that A1, A2, A3 and others were having serious wrangles with Ssonko Najib, Bahiga Mustapha, Umar Swiq, Ibrahim Hassan Kirya, Mahamood Kibaate, Haruna Jemba and Omulangira Nakibinge from as far back as 2012 and these escalated between October and December 2014. Mustapha Bahiga and Hassan Ibrahim Kirya appeared to be the primary targets of A1, A2, and A3 in this disagreement. This suggests motive on the part of the accused. Motive alone, in our view, may not prove anything.</p> <ol><li>Previous Threats:</li> </ol><p>Prosecution adduced evidence of PW15, PW22, PW28, PW29 and PW30 who testified about the threats issued by A2 to the victims and deceased persons. PW15 testified that at the height of the wrangles, an anonymous person called him from William Street and told him that his neck was ripe for slaughtering. He also told the court that at a meeting organized by Hajji Moses Kigongo, Mustapha Bahiga informed the meeting that he was no longer willing to work with A2 because this man is planning to kill us’. The statements made by A2 to PW22 to the effect that Mustapha Bahiga, Hassan Kirya, Mohammed Kiggunu and Swadiq Ndaula were the strong ones on the other side and the threat that he would kill them is on record. A2 told PW22:</p> <p>even if it means killing them I will kill them .... those men are joking they have never killed but for me even if it is in broad day light I can kill".</p> <p>A2 said this while thumping his chest. PW29 testified that A2 uttered several threats to the deceased persons. Among other things A2 said:</p> <p>‘Kirya is joking he can’t survive.................. those people are joking... we have guns’.</p> <ol><li>Fliers:</li> </ol><p>Prosecution tendered evidence regarding the printing and distribution of fliers with defamatory messages against the victims and the association of the fliers to A1, A2, A3, A4, A7, A11 and A12. This was in the testimony of PW27, PW28, PW30 and PW36. PW30 particularly testified that it was agreed at one of their meetings at A1’s home that the names of the six victims should be tarnished in all ways. A team was appointed to achieve this. PW30 further testified that A2 was the invisible hand behind those fliers. Counsel for the prosecution submitted that for the accused persons to take the time and resources to print these fliers and distribute them at the mosques means only one thing: that they were not only determined to and capable of implementing their plans and threats to eliminate the victims, they had in fact started to implement their plans.</p> <ol><li>Planning Meetings:</li> </ol><p>Prosecution adduced evidence of PW29 and PW30 regarding meetings organized at the homes of A1, A2, A3 and A4 to discuss the elimination of the victims. The suggestion to kill the deceased, the procurement of young men to train in handling guns, the attempt to find shooters, the recruitment of former rebels, the promise to eliminate the deceased using guns, procurement of motorcycles and riders to execute the mission to kill the deceased persons were all hatched and discussed at these meetings. It was at one of these meetings that A2 stated that it was now time for ‘bullet to the flesh’ for the victims. PW30 further testified about the prominent role played by A.8 in planning the killings. He was in charge of training in Nakasero mosque and identifying the people to execute the mission.</p> <p>There is further evidence of PW30 regarding a conversation he had with A2, A3 and A8 at A2’s office at Nakasero Mosque a few days before the murder of Mustapha Bahiga. PW30 testified that at this meeting A2, A3 and A8 warned him not to be shocked if something happened that weekend. Mustapha Bahiga was shot dead that Sunday. Prosecution submitted that this was further evidence that the accused persons were not only aware of what happened; they were the ones who planned it.</p> <ol><li>Peculiar circumstances of the Murders:</li> </ol><p>Prosecution adduced evidence on the mode of killings. The mode of execution of killings is further corroboration of the dying declaration. PW30 testified that in their various planning meetings, the accused persons agreed to eliminate the victims by ‘bullet to flesh’.</p> <p>Further, PW22 testified that A2 had threatened to kill the victims. The pictures and names of Hassan Ibrahim Kirya, Mustapha Bahiga and PW15 were all on the three fliers that were circulated and tendered as P41, P42 and P43. All 3 were attacked using guns. The assailants at Bwebajja Mosque and Bweyogerere were both riding motorcycles and fled on the same. The evidence of PW10, the senior Government Ballistics Analyst which comprised in P18 and P19 is to the effect that the firearm used in the attack on Hassan Ibrahim Kirya and Musapha Bahiga was the same type. These attacks apparently aimed to kill each of the victims and not for any other purpose. Prosecution also submitted that the assailants did not rob anything from their victims and it is clear from the evidence that their sole purpose was to kill their victims. Further that there was no other evidence to indicate to court that all the deceased persons and other victims had any other serious conflict with any other person other than the group led by A1 and A2 at the time of these attacks.</p> <p>In our view this piece of evidence does not seem to advance any further proof of participation of any of the accused person in the death of Mustapha Bahiga or Hassan Kirya or the attack at Haruna Jjemba’s home.</p> <ol><li>Telephone records:</li> </ol><p>Prosecution adduced evidence of telephone records tendered in court further connects the accused persons to the offence. PW30 testified that at their meetings, as they finalized plans to eliminate the victims, A8 was desperately looking for a one Amir Kinene [A5] and stated that Amir Kinene was the only one missing for the mission to succeed and this was immediately before the death of Bahiga Mustapha.</p> <p>PW35 testified that upon arrest, A5 led him to search his father’s house at Keti Farao zone in Kawempe Division and among others he recovered sim pack for telephone number 0753742181. This was recorded on the search certificate tendered as P38. PW36 testified that the late SSP Ogweng Julius handed over to him P45 a Nokia phone model RM9640 as property recovered from A5 upon arrest. The serial number IMEI 351723066087935 of P45 shows that telephone number 0753742181 was the very number used in this phone on the 28/12/2014 at 8pm. PW34 testified that the telephone number in question is registered with Airtel network in the name of Kinene Tebukoza. He further explained that the last digit of an IMEI number is always recorded on a Call Data Recovered [CDR] as 0 because it is inconsequential as the first 14 are sufficient to uniquely identify a handset. The CDR for this telephone number 0753742181 tendered as P.37 shows the telephone number was operating in an area scientifically located at the scene of murder of Bahiga Mustapha on the 28<sup>th</sup> December 2014 between 7pm and 8pm, at approximate time when Mustapha Bahiga was shot. It shows that telephone number 0753742181 was making communication using base masts of Namasuba, Najjanakumbi and Ndeeba, places geographically proximate to the scene of murder. It further shows that immediately after the murder, the holder of the number left towards Jinja District as subsequent calls were recorded as using base masts of Kireka, Ryder Hotel and Bulyasi; an indication the holder of the number was moving in that direction.</p> <p>This should be considered in light of evidence of PW25 who testified that A5 and A6 rented a house from her located at Mafubira Village in Jinja on the 27/12/2014 just one day before the murder of Mustapha Bahiga. It was from this house that A6 was arrested after A5 identified him to PW27 as his accomplice and led PW27 and team to arrest them in Jinja.</p> <p>In the case of Akbar Hussein Godi v Uganda Cr. App. No.03 of 2013 the</p> <p>Supreme Court observed that evidence of telephone print outs is significant even where the exact messages sent or words are not captured. The print outs were instrumental on the conviction of the appellant. In Uganda v Kato Kajubi, Cr. App.</p> <p>No. 39 of 2010 (CA), one of the pieces of evidence considered as corroboration was evidence of telephone communications. This evidence was used to connect the accused to the scene of crime.</p> <p>Learned counsel for the prosecution argued that the above circumstantial evidence connects A5 and A6 to the offences indicted. Further, that it can’t be by pure coincidence that A8 was looking for A5 immediately before the murder of Mustapha Bahiga, and A5 is placed at the scene of crime at exactly the relevant time when the offence was committed, and immediately after the offence he is shown moving away from the scene of crime towards Jinja. And there is evidence that he only secured a residence in Jinja a day before the offence was committed. Learned counsel submitted that this was in preparation for the offence.</p> <p>The inevitable question, at this point is this, who is Kinene Tebukoza and is that person the same as Amir Kinene (A5) or Hakim Kinene Muswaswa (A6). That question was not clarified, and as such, casts doubt about the submissions relating to any participation of A5 and A6 in commission of the offences in counts Nos. 2,</p> <ol><li>or 4 of the indictment.</li> </ol><ol><li>Conduct of Accused Persons.</li> </ol><p>Prosecution made reference to the conduct of A2, A6 and A11. PW30 testified that after the death of Bahiga Mustapha, when PW30 confronted A2 and congratulated him for succeeding in the murder, A2 retorted that he knew of this. PW36 on the other hand called A11 and summoned him to come to police. A11 instead switched off all his known telephone numbers and fled to the village in Lwengo District where he was arrested from by PW31.</p> <p>PW27 testified to court about the circumstances under which they came to arrest A6. He told court that A6 refused to open the door despite repeated calls for him to do so by A5 who was his brother and the witness who clearly introduced his team as police officers. The conduct of A6 upon being requested to open the door by A5 and PW27 is clear evidence of conduct of a guilty mind. Final;y according to prosecution, this was conduct inconsistent with the innocence of the accused persons.</p> <p>We do not find much significance in the above conduct of the accused to link them to participation in commission of the offence they are indicted for.</p> <ol><li>Contradictions/ inconsistencies:</li> </ol><p>In criminal trials, inconsistencies in evidence often arise. They may be minor or major. Minor ones unless they point to deliberate untruthfulness can be ignored or overlooked. Major ones are those considered to be going to the root of the matter and pointing to deliberate untruthfulness. They may result in evidence being rejected. This is the reason why we rejected the evidence of dying declarations.</p> <p>Haruna Jemba Abdul Hamid Katungulu (PW15), a 60 years old teacher of Religion and Peace Studies at Makerere University, testified that he was one of the lead preachers originally at the Nakasero Mosque and member of the Executive Committee together with Muhamad Yunus Kamoga, late Abdul Hakim Sekimpi, late Kirya, late Bahiga and others numbering up to 20. That their organization originally known as the “Tabliq Movement” later became known as “Jamia Daawa Salafiya" and again broke up into two (2) rival groups.</p> <p>One group was headed by Kirya and included Bahiga, Najib Ssonko, Umar Sudiq Ndaula, Haruna Jemba and other executive committee members. The other group was head by Kamoga, and included his brother Murtaba Bukenya and others newly recruited. That there was rivalry between the two groups. He saw three (3) leaflets on which individuals were listed as being dangerous to the community (Islam). One list had names of the late Bahiga, the late Kirya and Najib Ssonko.</p> <p>Another list had the names of six (6) persons, namely:</p> <ol><li>Bahiga</li> <li>Kirya</li> <li>Mahamood Kibaate</li> <li>Najib Ssonko</li> <li>Umar Sudiq Ndaula</li> <li>Haruna Jemba</li> </ol><p>The third list had the names of six (6) persons after the death of Bahiga, namely:-</p> <table border="0" cellpadding="0" cellspacing="0"><tbody><tr><td style="height:25px; width:19px"> <p>1.</p> </td> <td style="height:25px; width:159px"> <p>Kirya</p> </td> </tr><tr><td style="height:28px; width:19px"> <p>2.</p> </td> <td style="height:28px; width:159px"> <p>Mahamood Kibaate</p> </td> </tr><tr><td style="height:31px; width:19px"> <p>3.</p> </td> <td style="height:31px; width:159px"> <p>Najib Ssonko</p> </td> </tr><tr><td style="height:29px; width:19px"> <p>4.</p> </td> <td style="height:29px; width:159px"> <p>Umar Sudiq Ndaula</p> </td> </tr><tr><td style="height:29px; width:19px"> <p>5.</p> </td> <td style="height:29px; width:159px"> <p>Haruna Jemba</p> </td> </tr><tr><td style="height:27px; width:19px"> <p>6.</p> </td> <td style="height:27px; width:159px"> <p>Kassim Nakibinge.</p> </td> </tr></tbody></table><p> </p> <p>That he saw the first list around the middle of 2014, the second list after his nomination as leader on 27/11/2014 and the third (3<sup>rd</sup>)one after the death of Bahiga. That he did not know the origin of the fliers (lists). That against his name, on the 3<sup>rd</sup> list/flier, were written the words to the effect that the Amir of the disabled stole wealth and money supposed to be gifts for Koramic competition in 2004 and destroyed the school at Kabigi and other words to the effect that “I built my own school at Wattuba”. Further that he received a telephone call saying his neck was ripe for cutting but in cross-examination by defense counsel this witness stated that he did not know or identify who attacked his home at Mattuga or who sent him a telephone call saying his neck was ripe for cutting or if any of the accused persons participated in the killings of Bahiga, Kirya or any other Muslim Sheikh or in the attack at his home at Mattuga on 30/01/2015;</p> <p>No. 40622 D/cpl. Wafana Rogers (PW16), No. 39996 D/cpl. Lule Moses (PW17) as well as D/ASP Kusingura Katsimbura Charles (PW.18) all visited the scene at the residence of PW15 at Wattuba Village. PW16 collected eight (8) cartridges from the scene and drew a Sketch Plan (Exhibit P24). PW17, as Scene of Crime Officer (SOCO) cordoned off and protected the scene, recovered five (5) empty cartridges, one SMG (gun) serial No. 48009311 from the policeman who was guarding that residence, one projectile, made an exhibit slip (Exhibit P25), (Exhibit P26) and made a SOCO Report (Exhibit P27). PW18 took over the exhibits from PW17 at the scene and delivered them at Mattuga Police Station on PF17A and later took them to the Government Analytical Laboratory for examination (Exhibit P28);</p> <p>Haji Yasin Kakomo (PW22), a 54 years old trader of Kyazanga and Masaka testified that he was part of the Tabliq Sect. That following divisions into two groups and verbal and other exchanges in mosques and elsewhere I attempted to mediate between the group headed by. A2 and the one headed by the late Mustapha Bahiga. I held meetings with A2 who was the Amir of the mosque at that time. At one such a meeting, he told me he was tired and was not going to accept anything that was going to divide the Muslims and that even if it meant killing he would kill. And that “those were joking and have never killed but for me even if it’s during daylight, I can kill. ” He said that while thumbing his chest. On another occasion A2 told me the difficult people who wanted to remove him from leadership included Hassan Kirya, Mustapha Bahiga, Ahmad Kiggundu and Sudiq Ndawula.</p> <p>That while attending a seminar at Masaka in November 2014, A3 read out the names of people who were nolonger wanted in their group namely 1. Mustapha Bahiga, 2. Sudiq Ndawula, 3. Muhamood Kibaate, 4. Haruna Jjemba, 5. Hasan Kirya and Najib Ssonko. There was a list which he distributed to all those present at the seminar that list had the names and pictures of the six people named above. That A2 was present when that list was being distributed by A3. That out of the four people, A1 had mentioned to me as the ones who wanted A2 to be removed from leadership only one of them namely Sudiq Ndawula is still alive, Muhamad Kiggundu having died about two weeks prior to this witnesses’ testimony in this case. In cross -examination, this witness said that A3 did not say that any of the six people should be killed that they should not be allowed in our mosques. Further when asked to repeat what A2 had told the witness, he stated in “even if it means killing or shading blood, I can do it because I have ever done it.” That the statement above was made by A1 at his office at Nakasero in the presence of only this witness and in reference to the four people named by A1 earlier. The witness stated that A2 never threatened him and never sent any messages to him. Finally he stated that he had no evidence that any of the accused persons were never involved in acts of terrorism.</p> <p>PW23 (SSP Odongo Mark Paul), a 36 years old police officer attached to SIU at Kireka testified that on 12<sup>th</sup>January, 2015 he recorded a statement from Sheikh Hassan Kirya (PE30) in which the said Sheikh Kirya complained that a threatening (SMS) message had been sent to him from telephone number 0782344324 written in Luganda language from an unknown person. In cross examination, the witness said that the late Kirya refused to divulge more information to him, further the witness found no proof that A2 or any of the other accused persons were behind the murder of Sheikh Kirya and that the late Kirya declined to show the witness the actual text of the (SMS) message.</p> <p>Witness “A” (a pseudonym) (PW28), testified in relation to threats in examination- in-chief:</p> <p>“I saw 3 posters starting in 2014 in September/October when Yusuf Kakande was distributing those posters at the entrance of the mosque at Masjid Noor Mosque at William Street. On the posters were names of three (3) of us, first mine, followed by Najib Ssonko, Hassan Kirya and Bahiga Mustafa. It had three photos of people including my photo on top of the others. At the top was written:</p> <p>“This is to notify all Muslims of the badness of the people below ...” At the bottom was written: “The above want the place...Noor closed and they are the ones leading to the arrest of Muslims.Avoid them. ”</p> <p>In cross- examination he stated:</p> <p>“The words on this poster are the same as the one I received. The words which threatened my life are on the poster:</p> <p>“The ones above are the ones who want the closure of the mosque and you should avoid them.”</p> <p>Further he stated:</p> <p>“The messages sent to me by Hamuza Kasirye were taken from me by police in my phone and police bought me another phone. ”</p> <p>Further he stated that:</p> <p>“I did not know who attacked Jemba and those who killed Kirya, who attacked Sheikh Haruna Jemba but I know who printed the posters, he confessed to me. He is Sulaiman Mubiru and he did so sometime I can’t remember the date.</p> <p>I have never seen any of the accused at any of the murder scenes of either Bahiga or Kirya. Apart from warning to leave issues of Islam, Kamoga has never threatened me.</p> <p>I have got some threatening messages.like from Yahaya Mwanje, Kawooya and Murta Bukenya and I wrote to them about them but I have not shown court any such threatening messages”.</p> <p>Witness “B” (a pseudonym) (PW29), a 30 years old businessman testified about meetings held at A1 ’s residence and elsewhere which among other things resolved to isolate leaders such as Sheikh Bahiga, Sheikh Kirya, Sheikh Major Kiggundu and a campaign to tarnish their names at mosques, beat some and pour acid on others. In cross- examination, he denied anybody ever being assigned to kill either Bahiga or Kirya and he did not know who killed the two. However, he stated that at one such meeting Sheikh Kawooya (A1 ) said:</p> <p>“Sheikh Bahiga is like a snake in the saucepan and if you don’t kill it you cannot eat.</p> <p>You creatures, you have forgotten that we are the ones who hold your lives, should we release these young ones?”</p> <p>Further that Kamoga (A.2), on 25/4/2012 told him:</p> <p>“Those are just talking, for us we have guns here. Those people should not joke with us.”</p> <p>Witness “C” (a pseudonym) (PW30), a 34 year old businessman of Nansana Kampala testified that he knew the late Mustapha Bahiga and the late Hassan Kirya since 2003 and 2004 respectively. That he also knew A2 since 2009 whom he was a very close friend of. That A2 instructed the witness and other fellow youths at Nakasero Mosque to be always prepared so that if any one tried to take power / leadership, they should fight and protect A2’s leadership. A2 was a leader of that mosque and he instructed the witness together with about 100 youths being assisted by Sheikh Murta Bukenya as the group called “lubalusewa” was being trained. A2 together with Sheikh Murta Bukenya, A1 and A2 and several others met in March and April 2012 at Kyengera in someone’s home. In April 2012 Sheikh Abdul Karim Sentamu, whom A2 had said was conniving with others to take away leadership from A2 had been shot dead at William Street Mosque. Following his burial on Saturday, A2 called a meeting and told us</p> <p>"what I told could stop us from reaching our target has just started happening</p> </div> <p> </p> <div> <p>“ Later I met A2 with A1 and A3 and A4 who was introduced to us as an addition to our team and was to train us in appropriate aspects of fighting. The training started at the Mosque at Nakasero beginning of 2013. The training was in boxing, kicking and use of sticks in fighting. A2 often addressed us emphasizing discipline and told us our objective was to take over the leadership of this Nation. Further he told us that only a few people remained hindering our way, namely 1. Mustapha Bahiga, a police spy, 2. Hassan Kirya an agent of CMI, 3. Muhamad Kiggundu, a major in UPDF, 4. The others were Umar Sudiq Ndawula, Sheikh Muhamood Kibaate, Hajji Jamiru Kiddu and others to be made known later. That was at a meeting at the home of A1 at Gayaza Road which was attended by A1, A3, A4 and Hamidu Mbazira and many others. After that meeting in which A2 said the year 2014 was dedicated to ways and means of those who were standing in our way, another meeting took place at the home of A3 at Kajjansi. At that meeting, A1 repeated the same message A2 had given us in the earlier meeting and 3 things were agreed upon, namely; 1. To tarnish their names so that people hate them, 2. Whoever we were able to meet, we beat such a person, 3. Whoever we could be able to pour acid on, we could do so. In October 2014, we beat Yahaya Ssegujja at Masjid Noor Mosque at William Street to near death. After that A2 told us that the next thing was to be "a bullet to the flesh" and that Abdul Salam Sekayanja, who was introduced to us at that meeting would lead the new phase of "bullet to the flesh." In November 2011, A8 told us our objective was to kill the following people. 1. Bahiga Mustapha, 2. Hassan Kirya, 3. Muhamad Kiggundu, 4. Umar Sudiq Ndawula, which we declined to do because those where our prominent teachers for a long time.</p> <p>This witness rode one motorcycle from Ndeeba and handed it over to A3 at the mosque in November 2014. It was new and unregistered. Finally, this witness stated that he was suspected to be no longer loyal to the group of accused persons and he was isolated.</p> <p>D/IP Mpamizo Kanyomozi (PW35), a 48 years old Police Officer testified attached to SID at Kireka who on 12<sup>th</sup>/08/2015 found A14 at SMI headquarters at Mbuya, cautioned him, took him to SID Kireka and detained him there. That upon interrogation, A14 disclosed that he had been recruited in a group that was supposed to follow up Hassan Kirya at his home at Busabala and kill him. A14 showed the witness a phone with photographs of the home of late Kirya. The witness recovered the phone and handed it over to the store man D/Kawanga. The witness did not take a charge and caution statement from A14 and did not know whether A14 ever made a charge and caution statement at all. Finally this witness in cross-examination stated that he did not find any evidence relating to the murders of Sheikh Bahiga and Sheikh Kirya and that he did not know who killed any of the two.</p> <p>Intention to cause the death of Dr. Haruna Jjemba</p> <p>Intention is a mental state that represents a commitment to carry out an action or actions. Intention involves mental activities such as planning and malice aforethought.</p> <p>The intention to cause death may be inferred from the surrounding circumstances that threaten the life of the victim and once the prosecution shows such a set of circumstances was caused by the voluntary act of the accused persons the burden on the prosecution is discharged.</p> <p>From the evidence so far on record, we have seen that Haruna Jjemba was allegedly categorised to be among the people said to be opposed to A2’s leadership of the Tabliq sect otherwise known as ‘Jamia Daawa Salafiya. Haruna Jjemba’s name and photograph was among those people listed on fliers/ posters and described as people who were not wanted in the mosques patronized by A2, A3 and several others. He testified that on 31/01/2015 in the night, his home at</p> <p>Wattuba, Mattuga in Wakiso District, was attacked by unknown gun men who shot several rounds outside of the house. He belonged to the rival group headed by Mustapha Bahiga, deceased, Hassan Ibrahim Kirya, deceased, and other Muslim Clerics some of whom are either deceased or still living. In cross-examination, he stated that he received a call from someone saying that his neck was ripe for slaughter but he did not know the person who called him. That although he did not know who printed the fliers /posters he believed the fliers were made by A2. That he did not know who killed the deceased persons named in the indictment or who carried out any acts of terrorism and he did not mention any name of who telephoned him and threatened him and that he did not know who attacked his home on 3<sup>rd</sup> January, 2015.</p> <p>Upon consideration of the above evidence we are unable to find proof beyond reasonable doubt that there was intention to cause the death of Dr Haruna Jjemba.</p> <p>That the intention was manifested in overt acts:</p> <p>PW15 Dr. Haruna Jjemba testified that someone called him and told him that his neck was ripe for slaughtering. He also testified that his residence was attacked by gunmen who shot bullets at his house in Matugga. Five empty bullet cartridges were recovered from the garden outside the wall fence. PW17 No. 9996 Detective Corporal Lule Moses, PW28 (Witness A), PW29 (Witness B) and PW30 (Witness C) testified that the accused persons had intention to kill the victims. And that this intention was expressed by threats and preaching in mosques. Further that the threats were translated into action through holding meetings chaired by A1 and A2. A2 proceeded to actively plan by a campaign of slander, beating, militia training, identifying gunmen to execute bullet to flesh’ command, buying motorcycles and getting riders.</p> <p>Upon consideration of the above evidence we find and hold that the prosecution failed to prove beyond reasonable doubt that the intention was manifested in overt acts because with specific regard to attempts to kill Haruna Jjemba we see no beating, any other form of physical assault, attack on his person, pouring of acid or similar acts. The shooting took place outside the house while he was inside the house. No bullets or projectile was recovered from inside the house. None of the assailants entered the house. There appears to have not been any contact whatsoever between Haruna Jjemba and those who attacked his home.</p> <p>In our view no overt acts were committed in the house where Haruna Jjemba was or on the body of Haruna Jjemba during the night of 3/01/2015.</p> <p>Whether the accused persons directly or indirectly participated in commission of the offences in count Nos. 2, 3 or 4.</p> <p>The attackers were not identified by Dr. Haruna Jjemba (PW15) as the attack was at night, in the dark and he never got out of the house. No one saw the assailants as they attacked and showered bullets outside the house. There was an armed police guard outside the house who reported the attack to PW15 early the following morning.</p> <p>We wish to observe here that, at this point in the evidence, either the investigators or the prosecution team made a significant omission by leaving out the potentially useful evidence of the police guard. That guard is the one who could have seen, possibly identified, counted the number of the assailants, their transport means and any other relevant aspect about the assailants. In absence of that evidence participation of any of the accused in the commission of the offence remains, to us, very doubtful.</p> <p>Upon careful consideration of all the above circumstantial evidence, we find and hold that the prosecution evidence does not irresistibly show that the accused persons or any of them participated in the deaths of Mustapha Bahiga or Hassan Ibrahim Kirya or the attempted murder of Haruna Jjemba. The prosecution evidence leaves several possibilities to point to other perpetrators of the offences than the accused persons.</p> <p>Consequently, we find and hold that the prosecution has not proved beyond reasonable doubt that any of the accused participated in the commission of the offence in count No. 4 of the indictment.</p> <p>COUNT NO.1: Terrorism Contrary to Section 7(1) and 2(b) of the Anti­Terrorism Act, 2002.</p> <p>Essential Ingredients: The Prosecution is under a duty to prove beyond reasonable doubt all the four (4) ingredients, namely:</p> <ol><li>Actual, attempted or threatened murder, maiming or attack on a group of persons in a private or public institution;</li> <li>The actual, attempted or threatened murder, maiming or attack on a person or a group of persons in a private or public institution were for purposes of intimidating the public or a section of the public and for a religious, political, social or economic aim;</li> <li>The actual, attempted or threatened murder, maiming, attack on a person or a group of persons in a private or public institution were committed indiscriminately without due regard to the safety of others or property.</li> <li>The accused persons participated in the commission of the offence either by direct involvement or complicity.</li> </ol><p>Section 7(1) of the Anti-Terrorism Act 2002 provides that any person who engages in or carries out any act of terrorism commits an offence and shall on conviction be sentenced to death if the offence directly results in the death of any person. In any other case the person shall be liable to suffer death. The acts or omissions that constitute the offence of terrorism are listed in Section 7 (2) (a) - (j) of the Act. In the instant case, under count 1 of the indictment, the acts for which the accused persons have been charged, and which the prosecution must prove beyond reasonable doubt, are contained in Section 7 (2) (b) of Anti­Terrorism Act 2002, namely:</p> <p>“direct involvement or complicity in the murder, kidnapping, maiming or attack, whether actual, attempted or threatened, on a person or groups of persons, in public or private institutions. ”</p> <p>Section 7(2) of the Act expressly states that the offence of terrorism is committed when a person carries out “all or any” of the acts enumerated in Section 7 (2) (a) - (j) of the Act. The act or acts of terrorism must have been committed:</p> <p>“for purposes of influencing the government or intimidating the public or a section of the public and for a political, religious, social or economic aim, indiscriminately without due regard to the safety of others or property”.</p> <p>Thus the aspects for consideration are the purpose or purposes for carrying out the acts or acts; the manner in which the act or acts are carried out; and the nature of the act or acts. The essential ingredients of the offence of terrorism under Section 7(2) (b) of the Anti-Terrorism Act have already been highlighted above.</p> <p>All the fourteen accused persons elected to keep silent when they were put on their defence. The burden of proof of a criminal offence rests on the prosecution and remains so throughout the trial. The accused persons do not bear the burden of proving their innocence. They are presumed innocent until proven guilty. The duty is therefore on the prosecution to discharge the burden of proof on all the ingredients of the offence of terrorism. It is for this court, therefore, to analyze the prosecution evidence and determine whether on its own, that evidence proves beyond reasonable doubt, all the four ingredients of the offence of terrorism. This will be discussed along the issues that were agreed on.</p> <p>Issue (i): whether there was actual, attempted or threatened murder, maiming or attack on a person or a group of persons in a public or private institution.</p> <p>On actual murder, it is already a finding of this court as reflected in counts 2 and 3 that the evidence adduced by the prosecution does not establish beyond reasonable doubt that the accused persons or any of them participated in the murder of Mustapha Bahiga or Hassan Ibrahim Kirya. Actual murder as an act of terrorism has therefore not been proved against the accused persons by the prosecution beyond reasonable doubt.</p> <p>On attempted murder, it is a finding of this court under count 4 that attempted murder as an act of terrorism was not proved by the prosecution against all the accused beyond reasonable doubt.</p> <p>On threatened murder, the prosecution relied on the evidence of PW15 (Haruna Jjemba); PW22 (Yasin Kakomo); PW28 (Witness A) PW29 (Witness B), PW30 (Witness C); and PW36 (D/Inspector Byamugisha Fulgensi).</p> <p>PW15 (Jjemba) testified that he received a call from someone telling him that “your neck is ripe for slaughtering. PW28 (Witness A) testified that he received pictures of graves on his phone through Whatsapp. One grave was with a body and another was empty. After the death of Bahiga he received pictures of a magazine and a gun AK47. The pictures were accompanied with words that “the other one is finished, this one is yours.”The other evidence is threatening messages traced to be that of A9 (Sematimba Abdulhamid Mubiru) who allegedly confirmed that he sent messages and that the number 0782344324 which sent the message was his. This evidence is supported by the statement of Ibrahim Hassan Kirya (Exhibit P30), which was recorded by PW23 (SSP Odong Mark Paul) before Kirya died.</p> <p>The prosecution however did not tender in evidence any recording or print out of the calls where PW15 (Haruna Jjemba) was told on phone that his neck was ripe for slaughtering, nor was the telephone set tendered as an exhibit. Similarly, the handset or phone of PW28 (Witness A) that received the Whatsapp messages was not tendered in evidence, neither were the offending messages tendered in evidence in any form, that is, soft copy or hard copy. In the same manner the phone and the offending text message against Kirya allegedly sent by A9 (Sematimba AbdulhamidMubiru) were not tendered in evidence by the prosecution.</p> <p>Witness A stated during cross examination that the threatening death messages sent to him were from A10 (Hamuza Kasirye). The evidence of PW36 as supported by exhibit P30 is that the threatening messages to Ibrahim Kirya were sent by A9 (Sematimba Abdulhamid Mubiru) who is supposed to have confirmed so.</p> <p>A9 and A10 elected to keep quiet when called upon to make their defence. This is their constitutional right. It does not remove the burden of proof on the part of the prosecution to prove their guilt beyond reasonable doubt. The burden of proof at all times remains with the prosecution to prove the guilt of the accused. Section 101 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist, that is the burden of proof lies on that person. [Also See: Woolmington v. DPP; Okethi Okale &amp; Others v. Republic; Lubogo &amp; Others v. Uganda; Joseph Kiiza &amp; Others v. Uganda, supra].</p> <p>Thus, the burden to prove threatened murder of Hassan Kirya, of PW15 (Haruna Jjemba) and of PW28 (Witness A) through calls or text messages or pictures sent to their respective mobile telephones was, in our opinion, not discharged by the prosecution to the required standard in criminal matters.</p> <p>We agree with the Assessors that there was reasonable doubt as to whether the calls or messages or pictures were actually sent to PW15 and PW28 on their respective mobile phones. We make the same finding regarding the threatening messages sent to PW15, PW28 and Hassan Kirya.</p> <p>On threatened murder, however, there is other evidence that threats of death were directly communicated to some witnesses by Sheikh Yunus Kamoga (A2) in his conversations with them, during meetings, preaching in mosques, and through fliers which were distributed among Muslim.</p> <p>On threatened murder through direct communication or person to person conversations, PW28 (Witness A), testified that Sheikh Yunus Kamoga (A2) told him (Witness A) that:</p> <p>“...you are a businessman; you should leave these things. You are not a sheikh...if not these children will kill you. ”</p> <p>PW22 (Yasin Kakomo), who was part of the Tabliq sect with the late Mustapha Bahiga and the late Hassan Kirya since 1988 and 1994 respectively, testified that A.2 sheikh Yunus Kamoga, in reference to the Bahiga group, told him (Kakomo) that;</p> <p>“.../ was tired and not going to accept anything that was going to divide</p> <p>Muslims and even if it meant killing I would kill....................... those are joking and</p> <p>have never killed but for me even if it is during daylight I can kill”.</p> <p>Witness B also testified that A2 (Sheikh Yunus Kamoga) told him that (Witness B) that:</p> <p>“Kirya cannot survive, those people are joking, for us we have guns”. Section 58 of the Evidence Act (Cap. 21) provides that:</p> <p>“All facts, except the contents of documents, may be proved by oral evidence”. Section 59 of the same Act provides as follows:</p> <p>“Oral evidence must be direct, that is to say:</p> <ol style="list-style-type:lower-alpha"><li>if it refers to a fact which could be seen, it must be the evidence of a witness who says he or she saw it;</li> <li>if it refers to a fact which could be heard it must be the evidence of a witness who says he or she heard it. ”</li> </ol><p>PW22 and PW28 testified as to what they directly saw and heard, regarding their direct conversations with A2 (Sheikh Yunus Kamoga). Their evidence was therefore not hearsay but direct oral evidence. PW22 in his own words, testified that he knew A2 (Sheikh Yunus Kamoga) “very well” as he had been with him “for quite a long time” and we were united because of religion and we were doing religious matters together.” PW28 also testified that he knew A2 (Sheikh Yunus Kamoga) well, along with other accused persons “as a fellow Muslim and I have been with them for a long time”. The two witnesses belonged to the Tabliq sect like A2. PW28 testified that he had known the accused persons, including A2, for various periods since 1994. PW22, a Muslim from Masaka, Lwengo, testified that he was part of the tabliq sect to which A2 and the late Mustapha Bahiga and Hassan Kirya belonged. PW28 and PW22 each identified A2 in court while they were testifying. They could therefore not have been mistaken about his identify. The defence, save for submitting that the accusations were provoked by wrangles amongst the two groups, did not, in our view, controvert or discredit this evidence.</p> <p>On the aspect of threatened murder through direct communication or conversations, therefore, it is our finding that the prosecution has proved this aspect beyond reasonable doubt against A2.</p> <p>The same legal provisions on direct oral evidence as highlighted above concerning threatened murder by direct communication would apply to the evidence against A3 (Murta Bukenya) and A4 (Fahad Kalungi) directed at PW30 (Witness C). Witness C testified that A1 ( Sheikh Siraje Kawooya), A3 (Murta Bukenya) and A4 (Fahad Kalungi) informed him (Witness C) that he had hours to purify his name otherwise he would be included on the list of those to be killed. This was not hearsay since PW30 (Witness C) was testifying about what he heard directly from the said three accused persons. PW30 (Witness C) could not have been mistaken about the identities of A1, A3 and A4. His evidence is that he was in Kamoga’s group where he mobilized with A1 (Sheikh Siraje Kawooya), A3 (Murta Bukenya) and eventually A4 (Fahad Kalungi) who was introduced to the group by A2 (Sheikh YunusKamoga) to help in training. He was acquainted with the leadership of the Muslim sect at William Street Mosque since 2003. He knew about the disagreements and break up leading to the division into two groups one led by Kamoga and the other by Haruna Jjemba. During the trial he identified A1, A3 and A4, among other accused persons, as persons he knew well.</p> <p>In view of the above adduced evidence, based on the law already cited, it is our finding that threatened murder of PW30 by A1, A3 and A4 as brought out by Witness C was established beyond reasonable doubt by the prosecution against A1, A3, and A4.</p> <p>On the threatened murder during meetings, PW29 (Witness B) testified that while in the meeting towards the end of 2011 at the home of A1 at Gayaza Road, A1 (Sheikh Siraje Kawooya) said:</p> <p>“Bahiga is like a snake in the saucepan. If you do not kill it, you cannot eat.”</p> <p>PW29 (Witness B) testified that A3 (Murta Bukenya) told them in the same meeting that (Hassan) Kirya was a government spy; that in the days of prophet Mohamed they would send someone to kill those who frustrated the progress of Muslims. PW30 (Witness C) testified that A8 (Sekayanja Abdul Salaam) told them that their target was to kill Sheikh Bahiga, Sheikh Kiggundu, and Swadiq Ndawula; that A2 (Sheikh Yunus Kamoga) introduced A8 (Sekayanja Abdulsalaam) as an expert in “bullet to flesh”, that they recruited ex rebels, and that A4 (Fahad Kalungi) was on the selection team.</p> <p>The evidence of PW29 (Witness B) and PW30 (Witness C) is not hearsay as the two witnesses actually attended the meetings and heard directly what the stated accused persons were saying. PW29 (Witness B) and PW30 (Witness C) knew A1, A2, A3, A4 and A8 well. They identified the said accused persons in court during the trial.</p> <p>The defence submitted that since there were no minutes of the meetings submitted in evidence, what transpired in a meeting can only be proved by documentary evidence. However, in view of Sections 58 and 59 of the Evidence Act already highlighted above, oral evidence of a person who saw the accused persons and heard what they said is as good as documentary evidence of what transpired in such meetings. Witness B stated during cross examination that initially minutes were taken but later this was abandoned. The oral evidence of threatened murder by A1, A2, A3, A4 and A8 was not controverted by the defence.</p> <p>In the circumstances, based on the law and the above evidence, it is our finding that the element of threatened murder through meetings by A1, A2, A3, A4 and A8 has been proved by the prosecution beyond reasonable doubt.</p> <p>On threatened murder using fliers, PW30 (Witness C) testified that A7 (Kakande Yusuf) distributed fliers at William Street Mosque. The fliers were tendered in evidence by the prosecution as exhibits P41, P42 and P43. Exhibit P42 bears photographs of six people namely Ssonko Najib, Mustapha Bahiga, Umar Swadiq, Ibrahim Hassan Kirya, Mahmood Kibaate, Sudiq Ndaula. Exhibit P42 bears the names of the same people save that the name of Mustapha Bahiga who had already been killed was replaced by that of Omulangira Kassim Nakibinge. Exhibit P43 which was the first flier to be issued, bore the names of Ssonko Najib, Hassan Kirya and Mustapha Bahiga. The messages on the fliers were that the people mentioned thereon should be avoided (“mubewale”). This in our opinion does not amount to a death threat.</p> <p>In that regard, based on the adduced evidence and findings, it is our finding that the threatened murder using fliers has not been proved by the prosecution beyond reasonable doubt.</p> <p>On maiming, PW20 (Kenneth Rono) testified that he was injured with glass on his right eye. PW19 (Mubiru Ben) the health practitioner examined him on the medical form PF3 where he classified the injury as harm. The medical form was tendered in evidence by the prosecution as exhibit P29. PW21 (Semakula Isma) testified that he was shot on his right leg on the day Hassan Kirya was shot, and he was admitted to Mulago Hospital for six months. Witness C testified that a one Yahaya Ssegujja was beaten to a point of near death at William Street by a group belonging to A2 (Sheikh Muhammad Yunus Kamoga) and A4 (Sheikh Fahad Kalungi) who was in charge of the beating. However Ssegujja was not called as a prosecution witness neither was there a medical report to classify the kind of injury suffered by Ssegujja.</p> <p>Thus, the evidence of PW19 and PW20 as corroborated by exhibit P29 establishes actual maiming of PW20. There is however no direct or circumstancial evidence to establish that the accused persons or any of them participated in the actual maiming of PW19 or PW20. In that regard actual maiming as an act of terrorism has not been established beyond reasonable doubt against the accused persons or any of them.</p> <p>On threats of maiming, Witness C testified that in a meeting attended by A1 (Sheikh Siraje Kawooya), A2 (Sheikh Yunus Kamoga) and A4 (Sheikh Fahad Kalungi), there was a resolution that one of the ways to eliminate people standing in their way was to use acid. This, as already established above, was direct evidence by Witness C who attended the meeting and directly heard the statements of A1 and A4. That evidence was not controverted and we believe and accept it. Threats of maiming have, in our view, been established against A1, A2, and A4 by the prosecution beyond reasonable doubt.</p> <p>On actual attack, the Oxford Advanced Learner’s Dictionary defines “attack” to mean, among other things, as “an act of using violence to try to hurt or kill” or “strong criticism of something in speech or in writing’ (emphasis added).</p> <p>The evidence of PW15 (Haruna Jjemba) PW16, PW17 and PW18 establishes that the home of Haruna Jjemba was attacked by gunmen who shot bullets at his wall fence. Spent cartridges (Exhibit P26) were recovered from the scene of crime by PW17. However, as established in count No. 4, there is no evidence, direct or circumstantial, to link the attack to the accused persons. Thus “attack” in the sense of using violence or trying to kill by the accused persons has not been established beyond reasonable doubt by the prosecution.</p> <p>There is the evidence of PW15, PW22, PW26, PW27, PW28, Witness C and PW36 that the names and reputations of Mustapha Bahiga, Umar Swadiq, Ibrahim Hassan Kirya, Mahmood Kibaate, Sudiq Ndaula and Omulangira Kassim Nakibinge were tarnished to the effect that the said people were a danger to the community and that they should be avoided. This was contained in fliers (exhibits P41, P42 and P43). There is evidence that A7 distributed these fliers at William Street Mosque. In exhibit P41 Haruna Jjemba was stated to have stolen prize money for the best Quran reader in 2004 and to have stolen funds from Kabigi School out of which he built his own school. PW28 (Witness A) was stated to have stolen a coaster. The words in the fliers attacked the reputations of the people mentioned. The evidence of PW22 is that A3 read out the names in the fliers which were distributed in a seminar in Masaka. The evidence of PW28 (Witness A) and PW29 (Witness B) and PW30 (Witness C) is that the fliers were distributed in Kampala with the words that those named should be avoided.</p> <p>It is our finding that this amounted to attack of the reputations of the people named. The adduced evidence is that it is A1, A3 and A7 who were involved in the attacks.</p> <p>One important aspect in the first ingredient of the offence of terrorism is that the actual, attempted or threatened murders, and the maiming or attack should be on a person or a group of persons in a public or private institution. The word “institution” is defined by oxford English Dictionary as “an organization founded for a religious, educational, professional, or social purpose”. Black’s Law Dictionary, 8<sup>th</sup> Edition, at page 813 defines the same term as “an established organization especially one of a public character<sup>1</sup>’.</p> <p>The evidence adduced by prosecution has established that Ssonko Najib, Mustapha Bahiga, Umar Swadiq, Ibrahim Hassan Kirya, Muhamood Kibaate, Haruna Jjemba and Omulangira Kassim Nakibinge, all of whom were targeted in the attacks, were in the leadership of Jamiya Dawa Al Salafiya’, a religious movement within the Muslim Religion based at Nakasero and William Street mosques.</p> <p>The defence submitted however that the existence of such an institution was not proved; that in Uganda established institutions or organizations are registrable entities under laws like Non-Governmental Organizations Act, the Trustees Incorporation Act and the Companies Act; and that without a Certificate of Incorporation showing that the said institution is a registered private or public institution, no act of terrorism as envisaged under Section 7(2)(b) of the Anti­Terrorism Act can be sustained.</p> <p>The Cambridge international Dictionary of English, Cambridge University Press at page 651 defines an institution as a large and important organization such as a University or a Bank: a medical/ educational/ financial institution. An institution is not only restricted to registered or registrable entities. It is true, it includes registered or registrable entities, but it extends beyond that. It can relate to a religion, a family, a school, a society, a University, etcetera. With respect, there is nothing in the Anti-Terrorisms Act to suggest that an institution should be registered or must be a legal person with a Certificate of Incorporation the way it is understood in the law of Business Associations. There is evidence adduced in this case that the threats or actual threats were directed at persons in an organization, the ‘Jamiya Dawa Al Salafiya’, which existed among persons professing Islam as a religion in Uganda.</p> <p>Issue (ii): Whether the acts in issue (i) were for purposes of intimidating the public or a section of the public and for a religious, political, social or economic aim.</p> <p>The prosecution relied on the testimonies of PW15 (Haruna Jjemba), PW22 (Yasin Kakomo), PW23 (SSP Odong Mark), PW28 (Witness A), PW29 (Witness B), PW30 (Witness C), and PW36 (DIP Byamugisha Fulgence) to establish this ingredient of the offence.</p> <p>On the aspect that the proved acts of terrorism were for purposes of intimidating the public or a section of the public, PW16 (Haruna Jjemba) testified that he saw the first flier (Exhibit P42) bearing names of three people, namely Mustapha Bahiga, Hassan Kirya and Najib Ssonko with their photographs, with words that they are a danger to the community; that he saw the second flier (Exhibit P42) it came after the killing of Mustapha Bahiga whose name was replaced with by that of Prince Kassim Nakibinge.</p> <p>PW15 (Haruna Jjemba) testified that he got fliers bearing photographs and names of persons whose names were being tarnished among the Muslim community. The fliers sought to tarnish the reputations of the named persons. PW27 (Detective ASP Mulamira Patrick) testified that he conducted a search at the home of A1 (Siraje Kawooya) where fliers bearing names of the targeted sheikhs were written. This was confirmed in the testimonies of PW22 (Yasin Kakomo), PW26 (Semwanga Lutaaya Badru), PW28 (Witness C) and PW36 (Detective Inspector Byarugisha Fulgence).</p> <p>PW15 testified that the fliers caused a threat to him. PW22 (Yasin Kakomo) testified that after A3 (Murta Mudde Bukenya) read out names on the fliers which were distributed in the Masaka seminar, he (PW22) lost hope saying that he had never seen Muslims refusing fellow Muslims to enter into mosques and calling them enemies. This was confirmed in the testimonies of PW28 (Witness A), PW29 (Witness B) and PW30 (Witness C) who all testified that fliers were distributed in mosques in Kampala with words that those named should be avoided.</p> <p>This, in our considered opinion, amounted to intimidation of that group of Muslims for religious and or social purposes. The adduced evidence, in our view, establishes, beyond reasonable doubt, the element of intimidation of a section of the public, that is, a group of targeted Muslims within their organization ‘Jamiya Daawa Asalafiya’ where there were warring factions.</p> <p>On intimidation for religious purposes, PW15 (Haruna Jjemba), PW22 (Yasin Kakomo), PW28 (Witness A), PW29 (Witness B) and PW30 (Witness C) testified that there were wrangles and misunderstandings among the Muslim community around 2011 and 2012 over leadership of different mosques. This led to forming of two rival groups. One group was led by A2 Sheikh Yunus Mohammad Kamoga and the other was that of Hassan Kirya and Mustapha Bahiga. The prosecution witnesses testified that the group of A2 started abusing the other group of Bahiga and Kirya over loud speakers.</p> <p>The evidence of PW15 (Haruna Jjemba), PW22 (Yasin Kakomo), PW28 (Witness A), PW29 (Witness B) and PW30 (Witness C) is that A2 (Sheikh Yunus Muhammad Kamoga) ignited conflicts. There is evidence of intimidation for religious purposes through meetings as testified by the witnesses who attended those meetings. Witness C testified that A2 wanted to remain in office and retain religious leadership of ‘Jamiya Daawa Al Salafiya’ Group. PW29 (Witness B) testified that towards the end of 2011 together with several of the accused persons and others numbering up to forty or more attended several meetings at A1’s (Sheikh Kawooya’s) home along Gayaza Road with the objective of changing the leadership of the organization called “Jamuhiyata Daawa Asalafiya.” Witness C in his testimony quoted A2, following the shooting of Sheikh Abdul Karim Sentamu, to have stated as follows at the meeting:</p> <p>“What I told ...would stop us from reaching our goals has just started happening...”</p> <p>Witness B testified that in 2011, Muslim leaders used to have meetings after every week; that one day they agreed that some leaders had over stayed in power and that they should be removed to allow the young ones to be involved in leadership; and that in some meetings held by Muslim leaders, A1 (Sheikh Siraje Kawooya) would talk about Sheikh Ibrahim Kirya, Bahiga, Kibaate, Lubega, Kiddu, and Kiggundu. PW22 and Witness A testified that misunderstandings among the Muslim community started around 2011 or 2012. PW15 (Haruna Jjemba) knew A2 very well as a fellow Muslim belonging to the Tabliq sect. He identified him in court during the trial. PW15 was a committee member together with A2 (Yunus Kamoga), Mustapha Bahiga, Ibrahim Hassan Kirya and others numbering to about twenty. PW28 (Witness A) also identified A1, A2, A3, A4, A7, A9, A12, and A13 in court as fellow Muslims he knew for various periods since the 1990’s. PW29 (Witness B) also knew several of the accused persons and attended meetings with them towards the end of 2011 at Sheikh Kawooya’s (A1) home along Gayaza Road. PW30 (Witness C) also attended a meeting where he quoted A2 to have stated that the only four people remaining hindering their way were Mustapha Bahiga, Hassan Ibrahim Kirya, Major Mohamed Kiggundu, Umar Sudiq Ndaula, Mohamed Kibaate and Haji Jamil Kiddu. He also attended a meeting with A.1 (Siraje Kawooya), A3 (Murta Mudde Bukenya), A4 (Fahad Kalungi) and others in 2014 at the same home of A1.</p> <p>The testimonies of the above prosecution witness who knew some of the accused very well and who attended the meetings and listened to their conversations, in our view, establishes beyond reasonable doubt that the intentions of the stated accused persons were to intimidate the public or a section of the public for religious as well as political purposes.</p> <p>On intimidation for religious purposes using fliers, PW15 (Haruna Jjemba) testified that he believed the fliers were from A2 (Yunus Kamoga); that when he talked to him about it, A2 said there were more fliers which were coming. PW22 (Yasin Kakomo) testified that A2 (Sheikh Yunus Mohammad Kamoga) told him (PW22) that he cannot tolerate the Bahiga group to separate the Muslims even if it means shedding blood; that in Nyendo, Masaka, A3 (Sheikh Murta Mudde Bukenya) made announcements that people who were enemies of Islam were not wanted in Muslim mosques and fliers listing the people not wanted were distributed. PW22 (Yasin Kakomo) testified that he took the flier to A2 (Sheikh Yunus Mohammad Kamoga) who told him that was the beginning and more were coming; that Bahiga was killed immediately after the second flier came out. The prosecution evidence is that fliers/leaflets were distributed at different mosques bearing names, photographs and words stating that these people are a danger to the Muslim community.</p> <p>The above evidence, in our view, amounts to intimidation for religious purposes.</p> <p>The testimonies of the prosecution witnesses that at one time a member of the Bahiga group (Yahaya Segujja) was beaten and tied with ropes and A2 himself stood to fight Musa Masimbi was not supported by any other evidence. Neither Yahaya Seguja nor Musa Masimbi were called as prosecution witness to corroborate this piece of evidence. We find and hold that allegation was not proven beyond reasonable doubt.</p> <p>On intimidation for political purposes, Witness C testified that A2 Sheikh (Yunus Mohammad Kamoga) told the youths that when he and others were still young they put a foundation and it was the responsibility of the youths to build on that foundation and that they will not reach their target unless some people are dead and no longer on earth; that after that Sheikh Sentamu died and A2 told their group the things he told them would hinder them had just started happening; that meetings were held at the home of A1 (Sheikh Siraje Kawooya) at Gayaza Road where A2 (Sheikh Yunus Mohammad Kamoga) told them that their target was to take over leadership of this nation, that there were a few people hindering their way, among them Bahiga a police spy, Kirya CMI, and Mohammad Kiggundu a UPDF Major; that after that A4 (Sheikh Fahad Kalungi) was introduced to the recruits to teach them how to fight. A8 (Sekayanja Abdul Salam) was introduced to them to teach them how to use a gun. He told them their target was to kill Sheikh Kirya, Sheikh Bahiga, Sudiq Ndaula and Sheikh Kigundu. When the recruits failed to execute the plan, A2 (Sheikh Yunus Mohammad Kamoga) came up with plan B to use ex rebels. A4 (Sheikh Fahad Kalungi) and A8 (Sekayanja Abdul Salam) were to select the rebels. The name of A5 (Amir Kinene) was mentioned among the desired recruits.</p> <p>The evidence of witness C is that the accused had plans to assume political leadership by overthrowing the legitimate government of Uganda, and that one of the reasons for earmarking Bahiga and Kirya were because of their political attachment to government, that is Bahiga being a “a spy for police” and Kirya “a worker for Chief of Military Intelligence”.</p> <p>The above evidence, which implicates A1, A4 and A8, in our view, amounts to intimidation for political purposes.</p> <p>On intimidation for economic purposes, PW15 (Haruna Jjemba) testified that the first flier (Exhibit P41) stated that Haruna Jjemba (PW15) stole prize money for the best quran reader in 2004; that PW15 as “Mubbi yabba... wessomero lye Kabigi n’azimba mu erirye e Wattuba” (he stole from a school in Kabigi and built his own school in Wattuba). PW28 (Witness A) testified that in the same fliers he (Witness A) was accused of stealing a coaster and rice.</p> <p>Further, on intimidation for social purposes, PW30 (Witness C) testified that, in their meetings they agreed that, whoever gets a chance to get a microphone would tarnish the names of people mentioned on the fliers so that they get tired of them. Exhibits P41 and P42 bore words that tarnished the names of all the people named. The message on the fliers to the Muslims was “tubekesa abasilamu okukolegana nabantu abo nebebakolagana nabo” (“we warn those Muslims who are dealing with them”); “mubewale”. (avoid them).</p> <p>PW30 (Witness C) attended the meetings and he knew the accused persons who made the statements during the meetings having been their associate and colleague in the Muslim community. He could not have been mistaken as to their identity and he identified the mentioned accused during the trial. His evidence that the said accused persons made the statements during meetings was corroborated by that of PW15 (Haruna Jjemba), PW28 (Witness A), PW29 (Witness B) and PW30 (Witness C). All that was direct oral evidence admissible under Sections 58 and 59 of the Evidence Act highlighted above.</p> <p>In view of the forgoing, based on the adduced evidence and the reasons given, it is our finding that the prosecution has proved beyond reasonable doubt that those acts of terrorism that have been proved against the stated accused persons were for purposes of intimidating the public or a section of the public and for a religious, political, social or economic aim.</p> <p>Issue 3: Whether the acts in (1) were committed indiscriminately without regard to the safety of others or property:</p> <p>The acts in (1) have been thoroughly discussed above. For ease of reference, these are actual, attempted or threatened murder, maiming or attack on a person or group of persons in a public or private institution and whether these acts were committed indiscriminately without due regard to the safety of others or property.</p> <p>What meaning do we attach to the word indiscriminate? The question to guide the court is: what is indiscriminate in an act of terrorism?</p> <p>In common parlance the word indiscriminate means affecting or harming many people or things in a careless, reckless, or unfair way. When something is indiscriminate, it makes no fine distinctions. Usually the word is used to describe violent acts or natural events because these things do not have a specific target. They affect all people without considering the differences in their lives for example nuclear bombs are indiscriminate, as are earthquakes. They affect everyone in their path rather than picking or choosing.</p> <p>In Black’s Law Dictionary, Ninth Edition, page 843 indiscriminate attack is defined as follows: (International law): An aggressive act that:</p> <ol><li>Is not carried out for a specific military objective,</li> <li>employs a means of combat not directed at a specific military objective, or</li> <li>Employs a means of combat the effects of which cannot be limited in accordance with an international protocol such as the Geneva Convention of 1949 and their protocols or The Hague Conventions of 1899 and 1907.</li> </ol><p>We shall take the meaning of indiscriminate to be an aggressive act (aggressive in that it is done in a determined or forceful way) not carried out for a specific military objective and affecting everyone and everything in their way without picking or choosing.</p> <p>It is worth noting at this point that this Court found that actual murder (i.e. the two counts of murder) was not proved to the required standard and neither was attempted murder.</p> <p>Court however found that acts of terrorism; threats of murder; threat to maim; and attack on a person or group of persons were proved by prosecution beyond reasonable doubt and it is in this context that the third ingredient will be considered. Court will look at and assess the circumstances under which they were committed to determine whether they were indiscriminately employed without regard to the safety of others or property.</p> <p>Threat of murder; threat to maim; and attack on a person or group of persons</p> <p>Prosecution led evidence of PW15, (Sheikh Haruna Jemba), PW22 (Haji Yasin Kakomo), PW28 (Witness A), PW.29, (Witness B), PW30 (Witness C) and PW36, (D/IP Byamugisha Fulgence):</p> <p>PW22: A hotelier and businessman testified that he was trying to mediate the split factions in the Muslim Community of the Tabliq sect: one was led by Sheikh Yunus Kamoga while the other was led by late Sheikh Mustafa Bahiga. PW22 knew the deceased Sheikh from 1988. He knew Sheikh Yunus Kamoga (A2) since 1983 and late Sheikh Kirya in 1994. He got to know Sheikh Murta Bukenya (A3) in 1988/89. He identified the three accused Sheikhs in court. Indeed, they worked together to spread the word of Islam and the Islamic faith. Often times, they would hold meetings. They would also spread the faith in Nakasero (Kampala), Masaka, Mutukula, Kyazanga, Mbarara, Busia and the rest of the country.</p> <p>They developed misunderstandings in their group in 2011/1012. In 2013, the problems exacerbated in their team of Tabliqs. Then started the rumor mongering and backstabbing of the leaders. PW22 decided to try and arbitrate with a view of resolving the disputes. The success he achieved was short-lived since in 2014 problems arose again.</p> <p>He discussed the issue of publicizing matters on the mic with Kamoga who promised to ensure that this is stopped and for a month, they were compliant. Then violence broke out when at William Street a Muslim faithful from the Bahiga group was beaten and tied with ropes.</p> <p>PW22 again went to him in Nakasero whereby A2 told him that some issues were disturbing him and for that reason, he should return later. After about a week, he went back to him and found him still unsettled. A2told him that he was tired and would not accept the position of the men; he objected to a division and if it meant shedding blood, he would do it. If it meant killing them, he would do it. He also said those group members were joking as they had never killed but for him, he could do it in broad daylight. This he said as he thumped his chest.</p> <p>After hearing from A2, he went back to Masaka. A2 however told him that on 20<sup>th</sup> November 2014, he (A2) and his group would go to Nyendo for a Seminar to address all Muslims in the country.</p> <p>PW22 attended the Seminar. A3 read out the names of people no longer wanted in the mosques of Muslims as follows: Sheikh Mustafa Bahiga, Sheik Sadiq Ndawula, Sheik Najib Sonko, Sheik Hassan Kirya, Sheik Muhammed Kibaate and Sheikh Haruna Jemba. He was in no doubt that all this was from the office of the Amir who was then Sheikh Yunus Kamoga (A2). A1 was castigating the Muslims whose names were read out and the message was that ‘those whose names were read out were enemies of Islam; they should not be allowed in mosques’.</p> <p>PW22 testified that he lost hope when the names were read out and the message articulated; for it had never been heard of or seen to disallow brothers from Islam and the mosque.</p> <p>About a month later, he heard of the death of Sheikh Bahiga and he was scared. The words he thought were a mere threat or a joke turned out to be real. He got very scared and told his colleagues in Kyazanga and Masaka and warned them of the dangers brewing in Kampala.</p> <p>A week from the death of Sheikh Bahiga, he started receiving threatening messages. He placed the issues in the hands of the police and was given security.</p> <p>PW28 (Witness A) testified that the misunderstanding within the Tabliq sect led to two factions forming. The tension culminated into posters pointing out people to be avoided and warning Muslims not to associate with them. The posters were being distributed at the entrance of the mosque on William Street. He got one from a one Yusuf Kakande. His picture was on one of the posters together with the ones of Sheikh late Mustafa Bahiga and late Sheikh Hassan Kirya. He testified that with the two having been killed, he lives in fear. He proceeded to A2 to tell him about the challenge and the response was ‘this was the beginning and more are coming’.</p> <p>More posters were printed and PW28 was on all of them. He testified that many attempts were made to resolve the misunderstanding but they failed.</p> <p>Kamoga told PW28 that ‘you are not a Sheikh or Muslim leader but a business man’ and ‘that he should concentrate on his business otherwise the youths would kill him’.</p> <p>PW28 testified that he has since been receiving threats in various forms. A one Hamza Kasirye (A10) (which name he got from the provider using MM app) sent him threatening messages which included pictures of a magazine and gun; picture of a grave with words ‘that one has gone, next is yours’; two pictures one with a body and one without.</p> <p>PW28 during cross-examination testified that on one of the posters there was a statement to the effect that he stole a coaster which should have been for the Muslims and stole rice as well. PW28 had all the information on a CD. Defense Counsel applied to have the CD produced in Court but soon after abandoned the application.</p> <p>PW28 pointed out that A2 and A3 made verbal threatening messages to him.</p> <p>PW30 (Witness C): he too testified on the wrangles and the rift that threatened the Muslim Tabliq sect. He also testified on failed mediation. He pointed out Sheikh Kamoga (A2)wanted to retain leadership at all cost. Youths were recruited to protect his position. With the help of Sheikh Murta Bukenya (A3) they were about to mobilize a team of about 100 youths. These would meetin Nakasero Mosque, Kyengera and various other places; A2 called the team 'Balubaluseewa’ meaning ‘where has the war broken out?’ and the essence was to be ever prepared. The leaders of the team were picked and they would meet the Sheikh (A2) in the company of A1 and A3. A2 at the meeting would tell them that they had put a foundation and it was their responsibility to build on that foundation. He warned them that they would not achieve that purpose unless some people were eliminated or dead.</p> <p>In 2012, a one Sheikh Ssentamu was shot at and killed near Nakasero Mosque. The assailants were never found but after the burial, A2 met with the youths at Kajjansi and told them that what he earlier told them about things hindering their progress and targets were beginning to happen and take place. A1 and A3 were in attendance and they introduced a one Fahad Kalungi (A4) who would assist in training the youths. The training was in boxing, kicking, how to use sticks and this intensified with time. A2 told the youths that the ultimate objective was to assume political power but some obstacles were hindering their path. There was Sheik Mustafa Bahiga, a police spy, Sheikh Kirya, a CMI operative and Major Kiggundu (now deceased), a UPDF soldier. This was in a meeting at A1’s residence in Gayaza and A1, A4 and others were in attendance.</p> <p>PW30 further testified that several other meetings were held and in one of them, they made three major resolutions to eradicate the enemy:</p> <ul><li>to tarnish their names so that the public hold them in disrepute,</li> <li>to ambush any one and beat,</li> <li>to pour acid on any of them if possible.</li> </ul><p>These tasks were assigned to different players. Work commenced. At the subsequent meeting, A2 informed them that the next thing would be ‘sasi ku nyama’ meaning ‘bullet to flesh’. A2 introduced A8 as the expert in bullets. Those who could handle guns were selected and it was agreed with A8 that there was need to re-train them.</p> <p>PW30 also testified that a decision was made to make posters with the names of the problematic people and these were made and distributed. At yet another meeting, A8 informed them of the need for training. A8 also told them that the mission was to kill Sheikh Bahiga, Sheikh Kirya, Major Kiggundu, Umar Sadiq Ndawula and others. Many of the youths were scared and they communicated this to him. A2 then informed them that he would focus on Plan B. A8 communicated this plan which was to use ex-rebels. A4 and A8 were to select the team of ex­rebels to carry out the task. A8 repeatedly talked of a one Amir Kinene (A5) whom he wished to get.</p> <p>A decision was taken to use motorcycles in their missions. PW30assisted in the movement of one of them after purchase. Thereafter, PW30 informed Court that his group started to doubt him and labelled him a traitor. He was accused of revealing secrets to the rival group. A1, A4 and others confronted him and told him that they knew what he was doing which was tantamount to a betrayal. They warned him to be careful lest he is also taken.</p> <p>At a meeting with A2, A3 and A4, PW30 was informed how his name had come out on a list of the enemy and how he was left with only a few hours. This threat to his life deeply scared him.</p> <p>Defense conceded that evidence of previous threats is relevant and admissible but that no evidence of previous or present threats was adduced in the case. They submitted that the evidence of PW30 was fabricated and attributed it to the power struggles that rocked the Tabliq Muslim sect. It is worth noting that PW30 all along belonged to the A2 group and there was no evidence to the contrary. In the opinion of Court, this evidence was not denied and the defense submission nether discredited nor controverted it.</p> <p>Court findings: The sequence of events as narrated in the testimonies above point to the following:</p> <ul><li>The leaders A1, A2, A3 and A4 were aggressive in delivering death threats to PW22, PW28 and PW30. They were forceful, determined and persistent as they delivered the threats.</li> <li>Court finds that neither the death threats made by A1, A2, A3, and A4 nor their mode of delivery of the threats targeted a specific military objective.</li> <li>Court finds that the threats were delivered by word of mouth through preaching in the mosques, in meetings and on loudspeakers and affected many people both Muslims and non-Muslims alike hence indiscriminate. The law on oral evidence has already been discussed above.</li> <li>Court also finds that the attack on the character of the people named on the fliers to wit; Mustapha Bahiga, Umar Swadiq, Ibrahim Kirya, Mahmood Kibaate, Sudiq Ndaula and Omulangira Kassim Nakibinge tarnished their names in as far as the named were alleged to be a danger to the community and that they were to be avoided. The fliers were distributed in Kampala and beyond bringing into play the aggressive and indiscriminate nature of the conduct and mode of distribution. The evidence adduced pointed at A1, A3 and A7 as the ring leaders in the character assassination mission.</li> <li>Acid reaction to skin is most feared due to the adverse effects which are non-reversible. The Court of Appeal in Mbatudde Betty v Uganda Crim. App. No. 140/2004 [2010] UGCA 17 described acid related crimes as ‘barbaric and should not be tolerated in a civilized society’. This threat of acid delivered by A1, A2 and A4 as a mode of attack was part of the grand plan to systematically eliminate the enemy.</li> </ul><p>Issue 4: That the accused persons participated in the commission of the offence either by direct involvement or complicity.</p> <p>The fourteen accused persons are charged jointly with the offence of terrorism contrary to Section 7 (1) and (2) (b) of the Anti-Terrorism Act, 2002.</p> <p>Important general principles of law that are relevant to this issue: In a case of this nature (where many people are jointly charged and tried for committing a given offence) in a bid to determine their respective culpability, Court has a duty to handle the State's case against each of the accused persons separately and individually. If Court does not do so, but resorts to handling the matters in an omnibus way, that procedure could prejudice all the accused persons or some of them. Secondly, in a case of this nature, it is always advisable to bear in mind the contents of Section 20 of the Penal Code Act (Cap. 120). For the sake of clarity Court will lay them out below. They read as follows:</p> <p>20. Joint offender in prosecution of common purpose.</p> <p>“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”.</p> <p>The import of the above section is this: In a case of this nature (i.e. where many people are accused of committing a given offence; and it might also not be known who played what part in committing the said offence) proof of the fact that all the accused persons shared a common intention to execute an unlawful purpose is enough to establish their respective culpability. (See: Sunday Kala Alagba v The King 19 N. L. R. 128 (P.C. 1950) and Rex v. Dominiko Omenyi s/o Obuka 10 E.A.C.A. 81 quoted at pages 538 and 541 of ‘A Source book of the Criminal Law of Africa’ by Robert B. Seidman).</p> <p>Section 7(1) of the Anti-Terrorism Act clearly states that a person who engages in or carries out acts of Terrorism commits an offence.</p> <p>Court made a finding that the evidence of PW22 and PW28 regarding verbal or person to person death threats were made by A2 (Sheikh Muhamad Yunus Kamoga).</p> <p>Court also made a finding that the evidence of PW30 and PW28 regarding verbal or person to person death threats were made by A1 (Sheikh Siraje Kawooya), A3 (Sheikh Murta Mudde Bukenya) and A4 (Sheikh Fahad Kalungi).</p> <p>Court also made a finding that the evidence of PW29 and PW30 regarding threatened murder during meetings were made by A1 (Sheikh Siraje Kawooya), A2 (Sheikh Muhamad Yunus Kamoga), A3 (Sheikh Murta Mudde Bukenya), A4 (Sheikh Fahad Kalungi) and A8 (Sekayanja Abdul Salaam alias Kasimu Mulumba).</p> <p>Court also made a finding that the evidence of PW30 regarding threats of maiming through use of acid on adversaries during meetings were made by A1 (Sheikh</p> <p>Siraje Kawooya), A.2 (Sheikh Muhamad Yunus Kamoga), and A4 (Sheikh Fahad Kalungi).</p> <p>Court also made a finding that the evidence of PW15, PW22, PW26, PW27, PW28 and PW36 regarding character smudging hence actual attack on persons during meetings were made by A1 (Sheikh Siraje Kawooya), A3 (Sheikh Murta Mudde Bukenya) and A7 Kakande Yusuf alias Abdallah.</p> <p>The assessors seem not to have appreciated the import of the law and evidence on threats. This could be the reason why they advised court that prosecution had failed to prove any terrorism offence and that all the accused persons should be set free.</p> <p>Conclusion:</p> <p>In the course of reviewing the evidence above we found and held that the prosecution has failed to prove beyond reasonable doubt that any of the accused persons participated in commission of the offences in counts Nos. 2, 3 and 4 of the indictment. Therefore, we find all the accused not guilty on counts Nos. 2, 3, and 4 of the indictment and accordingly acquit all the accused on counts Nos. 2,</p> <ol><li>and 4.</li> </ol><p>Regarding count No. 1 of the indictment we find and hold that the prosecution also failed to prove beyond reasonable doubt that A5, A6, A9, A10, A11, A12, A13, and A14 participated in the commission of the offence in count No.1 of the indictment. Therefore, we find them not guilty and accordingly acquit them on count No. 1.</p> <p>Nevertheless, regarding count No.1 of the indictment we found and held that the prosecution proved beyond reasonable doubt that A1, A2, A3, A4, A7 and A8 committed, at various times, acts of terrorism like attacking the reputation/character and threatening murder of members of a rival faction of the</p> <p>Tabliq sect over the ‘Jamiya Daawa Asalafiya’ program. The acts were committed against members of the Muslim faith in at least one seminar at Masaka, in meetings at the homes of A1, A2 and at gatherings in various mosques at Nakasero, William Street in Kampala and elsewhere. The acts were intended to and actually intimidated members of the Muslim Community and the rest of the public. The acts were for political, religious, economic or social purposes. Consequently, we find A1, A2, A3, A4, A7 and A8 guilty of the offence of terrorism and accordingly convict them on count No. 1 of the indictment. We hereby acquit A5, A6, A9, A10, A11, A12, A13 and A14 of all the charges in the indictment and set them free forthwith unless they are held on other lawful charges.</p> <p>Dated at Kampala this 21<sup>st</sup> day of August, 2017.</p> <p>E. K. Muhanguzi                               P. N. Tuhaise                         J. F.B. Kiggundu</p> <p><a name="bookmark0" id="bookmark0">JUDGE                                              JUDGE                                  JUDGE</a></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>SENTENCE AND REASON FOR THE SAME</p> <p>Following conviction of accused Nos. 1, 2, 3, 4, 7 and 8 on 21<sup>st</sup> August, 2017 on the count of Terrorism, Ms Rachael Bikhole - PSA, learned counsel for the prosecution for DPP, submitted that:</p> <ol><li>The offence was committed meticulously with premeditation.</li> <li>Fear was instilled in the families and society at large.</li> <li>Victims were traumatized and they live in fear.</li> <li>Some of the victims listed on the fliers lost their lives.</li> <li>Victims’ character were attacked and tarnished.</li> <li>Security of victims and their families had to be beefed up.</li> <li>The threats linger on.</li> <li>The convicts are Muslim leaders, yet they orchestrated the crimes and were pivotal in the criminal enterprise.</li> </ol><p>In response, Counsel Fred Muwema for convicts Nos. 1, 2, 3, 4, 7, and 8 stated that the convicts were convicted for "just" for aspects of the offence of terrorism. However, he conceded that convicts were responsible and religious leaders of a big section of a tabliq sect with a very large following in Uganda. That the convicts have not been convicted on any direct evidence but on largely circumstantial evidence. That court acquitted them on the very serious crimes of murder and attempted murder. That the deceased are brothers in the Islamic faith. That convicts have been in detention for over two years for even offences for which they were found innocent. That their businesses, families and followers are suffering if they continue in incarceration. That those who were named on the fliers were many but only two testified. That the convicts committed minor threats not to a wider group but one or two who testified which could pass for threatening violence or defamation.</p> <p>That the convicts have no previous conviction in relation to this offence or offences of this nature. He prayed for any light sentence or even a caution since the whole case was based on wrangles for leadership and not terrorism as known with weapons. That this appears to be a “technical terrorism”.</p> <p>Upon consideration of the submissions from the prosecution and the defence, it is our view that terrorism is a very serious offence punishable by mandatory death sentence, where murder was committed and maximum death sentence, where no murder was committed.</p> <p>In this case no murder has been proved against the convicts. However, probably by coincidence, the very persons listed on the fliers that attacked their character and intimidated them were the same that were eventually killed, though by unknown assailants. The manner in which the offences were committed was very meticulous and aggressive. It was premeditated and planned in meetings, during preaching at mosques using loud speakers and at seminars using fliers. That was done, not on a one off occasion but over a period of time and at diverse places around Kampala and elsewhere.</p> <p>Consequently, as testified by witnesses like PW22, PW28, PW29 and PW30 fear, suspicion, divisions, rivalry and anxiety were instilled in the victims, tabliq sect members, the rest of the Muslim Community and the general public at large.</p> <p>With respect to defense counsel’s submissions, we do not agree that the convicts were convicted for "just" aspects of the offence of terrorism or that they were convicted on largely circumstantial evidence. They were convicted for the offence of terrorism on direct evidence. We agree with defence counsel that no evidence of previous conviction was availed and that the convicts have been on remand for about two years.</p> <p>On the other hand, it is our view that the convicts having been leaders and yet orchestrated the offence is an aggravating factor and not a mitigating factor. The convicts should have put all their leadership energies into preventing crimes. They should have channeled their efforts into developing the livelihood of the members of their organization and the tabliq sect as a whole.</p> <p>We note with concern that the prosecution appeared not to have obtained any victim impact statement or any community impact assessment and did not tender such statements to court to assist court arrive at the most suitable sentence.</p> <p>We have taken into account the period (about two years) the convicts have spent on remand. We have considered the fact that the convicts have families, the particulars of whom were not brought to courts’ attention.</p> <p>Terrorism is a very serious wide spread and traumatizing offence. It has attained global attention. It has devastating impact on individual, communities and in some cases on the environment. It is necessary to protect society from the perpetrators of this offence. The perpetrators deserve such a sentence as will keep them away from society and deter others who may be contemplating committing that offence.</p> <p>The maximum sentence prescribed by Section 7(1) (b) of the Anti-Terrorism Act being death sentence and the sentencing range for capital offences including terrorism, according to the Sentencing Guidelines, being between 35years and death, we think it appropriate to sentence the convicts as follows:</p> <ol style="list-style-type:lower-alpha"><li>Sheikh Siraje Kawooya, Sheikh Muhamad Yunus Kamoga, Sheikh Murta Mudde Bukenya and Sheikh Fahad Kalungi to life imprisonment for all their lives on earth because they are leaders who orchestrated the crime instead of being good role models.</li> <li>Kakande Yusuf alias Abudallah and Sekayanja Abdulsalam alias Kassim Mulumba to 30 years prison term because they were not leaders but just followers.</li> </ol><p>Dated at Kampala this 22<sup>nd</sup> day of August, 2017.</p> </div> <p> </p> <div> <p> </p> <p> </p> </div> <p> </p> <p>E.K. Muhanguzi JUDGE</p> <p>P.N. Tuhaise JUDGE</p> <p>J.F.B. Kiggundu</p> <p>JUDGE</p></span></div></div> </div> </div> Wed, 13 Jan 2021 05:25:46 +0000 Anonymous 5621 at http://ulii.org Kalule v Uganda (Miscellaneous Criminal Application-2018/) [2018] UGHICD 1 (10 April 2018); http://ulii.org/ug/judgment/hc-international-crimes-division-uganda/2018/1 <span class="field field--name-title field--type-string field--label-hidden">Kalule v Uganda (Miscellaneous Criminal Application-2018/) [2018] UGHICD 1 (10 April 2018);</span> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Tue, 01/12/2021 - 09:40</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.ulii.org/files/judgments/ughicd/2018/1/2018-ughicd-1_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40718">2018-ughicd-1.docx</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p><strong>HOLDEN AT INTERNATIONAL CRIMES DIVISION KOLOLO</strong></p> <p><strong>CRIMINAL MISCELLANEOUS APPLICATION NO. 001 OF 2018.</strong></p> <p><strong>[Arising from the Chief Magistrate’s Court of Jinja Holden at Jinja Case No. AA No. 25/2016, DPP Case No. HQS – CO- 0229 – 2016, Police Case No. CID HQTRS E/109/2016]</strong></p> <p><strong>DR. ISMAIL KALULE::::::::::::::::::::::::::::::::APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>UGANDA::::::::::::::::::::::::::::::::::::::::::::RESPONDENT</strong></p> <p><strong>BEFORE: HONOURABLE MR. JUSTICE MOSES MUKIIBI</strong></p> <p><strong>RULING</strong></p> <p>The Applicant, DR. ISMAIL KALULE, has applied to this Court to be released on bail pending his trial. The Applicant was arrested on the 26<sup>th</sup> day of May, 2016 at the High Court Criminal Division soon after his acquittal of several counts of terrorism and Murder by this Court. He was detained at Nalufenya Police Station. On the 2<sup>nd</sup> day of June, 2016 he was taken before the Chief Magistrate’s Court at jinja where charges in two counts were read to him. The charges were:</p> <ol style="list-style-type:lower-roman"><li>Terrorism Contrary to Section 7 (1) and (2) (w) of the Anti-Terrorism Act, 2002; and</li> <li>Conspiracy to Commit Terrorism Contrary to Section 25 of the Anti-Terrorism Act, 2002.</li> </ol><p>The Chief Magistrate’s Court ordered that the Applicant be remanded at Kirinya Prison. The Applicant claims that he was returned to Nalufenya instead.</p> <p>The Applicant further claims that he was “remanded” at Nalufenya Police Station for several months. One wonders whether the Applicant was not attending Court for further remands. Why did it take his Advocate months to complain to the Chief Magistrate?</p> <p>Eventually, the Applicant was remanded at Luzira Government Prison. The Applicant was committed on the 19<sup>th</sup> day of December, 2016 for trial for trial by this Court.</p> <p>The Applicant filed this application on 15<sup>th</sup> February, 2018. By that date one year one month and twenty five days had gone by since his committal.</p> <p>This Court has established that the Committal file has not been received by this Division from the Chief Magistrate’s Court of Jinja. Therefore, the Applicant’s Case has not yet been registered at the ICD Registry. It has not been established in which Division of the High Court the Applicant’s case is pending trial. However, the Applicant has been on remand at Luzira Prison since the 19<sup>th</sup> day of December, 2016, waiting to hear from the High Court something concerning his trial. Hence, this application seeking to be released on bail.</p> <p>The Applicant did not plead and does not seek to rely on the existence of exceptional circumstances provided for in Section 15 (1) (a) and defined in Section 15 (3) of the Trial on Indictments Act [Cap. 23].</p> <p>Is the Applicant a person accused of an offence specified in Sub-Section (2) of Section 15 of the Trial on Indictments Act?</p> <p>Sub-Section (2) of Section 15 provides in –</p> <p>Parag. (a) an offence triable only by the High Court; and in</p> <p>Parag. (b) an offence under the Penal Code Act relating to acts of terrorism-----.</p> <p>The Applicant was charged under the Anti-Terrorism Act, 2002.</p> <p>Section 6 thereof provides as follows:-</p> <p>“ The offence of terrorism and any other offence punishable by more than ten years imprisonment under this Act are triable only by the High Court and bail in respect of those offences may be granted only by the High Court.”</p> <p>So, Terrorism Contrary to Section 7 (1) and (2) being an offence triable only by this Court an application for bail in respect of Count I of the charges preferred against the Applicant should rightfully be made to this Court under both___</p> <ol><li>Section 6 of the Anti-Terrorism Act, 2002;</li> <li> </li> <li>Section 14 (1) of the Trial on Indictments Act.</li> </ol><p>Section 15 (1) of the Trial on Indictments Act provides____</p> <p>“(1) Notwithstanding Section 14, the Court may refuse to grant bail to a person accused of an offence specified in Sub-Section (2) if he or she does not prove to the satisfaction of the Court_____</p> <ol style="list-style-type:lower-alpha"><li>That exceptional circumstances exist justifying his or her release on bail; and</li> <li>That he or she will not abscond when released on bail”.</li> </ol><p>In Constitutional Reference No. 20/2005 Uganda (DPP) Vs. Col. (Rtd.) Dr. Kiiza Besigye the Constitutional Court, on its own, offered to discuss a situation where the accused is charged with an offence only triable by the High Court but has not spent the Statutory period of 180 days in custody before committal. The Court observed that Court may refuse to grant bail where the accused fails to show to the satisfaction of the Court exceptional circumstances under S. 15 (3) of the Trial on Indictments Act.</p> <p>The Constitutional Court observed that the sole purpose of the Trial on Indictments (Amendment) Act, No. 9 of 1998, and the Provision for exceptional  circumstances, was to operationalise Article 23 (6) ( c) for accused persons desirous of applying for release on bail before the expiry of the Constitutional time limit of 180 days.</p> <p>The Constitutional Court, however, said –</p> <ol style="list-style-type:lower-roman"><li>That Article 23 (6) (a) of the Constitution confers discretion upon the Court whether to grant or not to grant bail; and</li> <li>That the exceptional circumstances set out in S. 15 (3) of the Trial on Indictments Act are regulatory.</li> </ol><p>This Court is supposed to consider each application for bail on its own merits.</p> <p>In an affidavit sworn in support of this application, ISMAIL KALULE, the Applicant stated_</p> <p>In Parag. 2 – that he is a Medical Doctor;</p> <p>In Parag. 4 – that he was granted bail by the High Court and he attended Court religiously whenever he was required to attend;</p> <p>In parags 3 and 5 – that he was arrested in 2010 in connection with the bombing at Lugogo and the Ethiopian Village Restaurant and that he was charged with several counts of Terrorism and Murder, but he was tried and acquitted by the High Court of all the charges on 26<sup>th</sup> May, 2016.</p> <p>In Parag. 6 – that on 26<sup>th</sup> May, 2016 while in the Criminal Division of the High Court of Uganda he was arrested and later detained at Nalufenya;</p> <p>In parag. 8 – that on 2<sup>nd</sup> June, 2016 he was taken before the Chief Magistrate’s Court at Jinja where charges in two counts were read to him and he was remanded at Kirinya Prison, but the police disobeyed Court and took him back to Nalufenya.</p> <p>In parag. 11 – that he does not intend to plead guilty.</p> <p>In parag. 16 – that he has a family with a wife and children whom he looks after, and that he intends to appear in Court at all time to attend his trial in Order to clear his name of the charges levelled against him.</p> <p>In Parag. 17 – that he has a fixed place of abode at Kiwatule, Kazinga Zone, Kira Municipality, Wakiso District.</p> <p>In parag. 18 – that apart from the charges the subject matter of this application there are no other criminal charges pending against him.</p> <p>In parag. 19 – that he has sound and substantial sureties within the Jurisdiction of this Court who have undertaken to ensure that he complies with the conditions of bail.</p> <p>In parag. 20 – that there is no likelihood of him interfering with investigations or witnesses.</p> <p>In parag 21 – that eversince his re-arrest and committal to the High Court he has spent over one and half years in custody with no indication as to when he will be tried.</p> <p>In parag. 22 – that the offences are bailable by this Court.</p> <p>In parag. 23 – that he undertakes to abide by any and all the bail conditions imposed upon him by this court and that he will not abscond if released on bail.</p> <p>In parag. 24 – that once released on bail he undertakes to abide by any conditions this court may set and that he will turn up for his trial as and when the Court wants him.</p> <p>In parag. 25 – that it is only fair, Just, Constitutional and in the best interests of Justice that he be granted bail pending his trial.</p> <p>In a Supplementary affirmation dated 21<sup>st</sup> March, 2018 the Applicant stated______</p> <p>In parag. 3 – that as a Medical Doctor he had a Clinic, Homeopathic Clinic at Plot  51 Rashid Khamis Road, Kampala.</p> <p>In Parag. 4 – that he is married to Ismail Hadijjah and the two have four school going children, namely_____</p> <ol style="list-style-type:lower-roman"><li>Fatimah Ismail aged 12 years,</li> <li>Azam Ismail aged 10 years,</li> <li>Wasiim Ismail aged 8 years, and</li> <li>Nadim Ismail aged 5 years.</li> </ol><p>That the children go to Grammar Primary School at Kiwatule.</p> <p>In Parag. 5 – that he has, at Kiwatule Kazinga Zone, a permanent residential house where his wife and children reside.</p> <p>The Prosecution filed an affidavit in objection to bail. It was sworn by one ETWOP BEN ODURKAMI, Detective Assistant Superintendent of Police (D/ASP) a CID Officer, dated 13<sup>th</sup> March, 2018.</p> <p>He stated in parag. 4 ____</p> <p>That the offence with which the applicant is charged is grave and carries a maximum sentence of death upon conviction and that once the applicant is granted bail, it is highly probable that he will abscond from the Court Process.</p> <p>He stated in parag 5_____</p> <p>That the proposed sureties are not substantial and will not be able to fulfil their duties.</p> <p>He stated in parag. 2_______</p> <p>That he is one of the investigating officers in the Case.</p> <p>I have a lot of respect for Police Officers but I wonder if anybody has educated them on the importance of the evidence by way of affidavits which they present to Courts.</p> <p>Where the charges relate to terrorism a Court may refuse to release a person on bail  if it is satisfied that it is for the protection of the public that an accused should not be released from custody.</p> <p>The interest and concerns of the state would be taken into consideration if evidence is presented to court.</p> <p>Etwop Ben Odurkami, D/ASP (CID) did not state any danger to the Public of which the police/prosecution may be apprehensive. Nor did he state either specifically or generally any prosecution witnesses whom the applicant may interfere with if released on bail. No mention was made of any grounds for fears that when released from custody the Applicant is likely to commit other offences. The Police/Prosecution has not produced any evidence that there is a risk of the Applicant absconding.</p> <p>There is no evidence from the Respondent that investigations are still continuing, and that the Applicant may access important prosecution evidence and, may be, cause it to  disappear.</p> <p>There is no evidence presented to this Court of any special interest of the State which this Court should take into consideration.</p> <p>Therefore, there is no evidence to satisfy this Court that it is for the protection of the public that the Applicant should not be released from custody.</p> <p>The Applicant referred to his good conduct when he was previously granted bail. Etwop Ben Odurkami, D/ASP has not presented any evidence to controvert the Applicant’s claim.</p> <p>The Applicant stated that he has ever been charged with several counts of terrorism and murder. He claimed that he was put on trial but was acquitted by the High Court of all the charges on 26<sup>th</sup> May, 2016.</p> <p>What this Court understands from the Applicant’s reference to his past record is that he is not under great fear because of the present charges after his previous experience. He wants this Court to believe that he is not likely to run away because of any fear of the charges. Etwop Ben Odurkami, D/ASP has not presented any evidence to induce this Court to hold a contrary view.</p> <p>If there are any genuine concerns on the part of the state they should be disclosed to court in a manner provided by law for that purpose.</p> <p>Learned Counsel Mr. Ochieng Evans represented the Applicant. On the other hand the state was represented  by the learned Senior State Attorney, Ms. Lilian Omara.</p> <p>Learned Counsel Mr. Ochieng Evans submitted that the Applicant is seeking to be released on bail pending his trial. He made reference to an affidavit in support of the application dated 15<sup>th</sup> February, 2018 sworn by the Applicant. He also relied on a Supplementary affirmation made by the Applicant.</p> <p>He submitted that the grounds for the Application stated in the Notice of Motion had been expounded in the two affidavits.</p> <p>Learned Counsel Mr. Ochieng Evans submitted that the Applicant is presumed to be innocent. He cited Article 28 (3) (a) of the Constitution. Counsel submitted that under Article 23 (6) of the Constitution the Applicant is entitled to apply for release on bail.</p> <p>Counsel made reference to the contents of the two affidavit/affirmation sworn/made by the Applicant. He submitted that the Applicant is a person who can be trusted to come back and attend his trial.</p> <p>Counsel presented four sureties to court.</p> <p>The first surety was FATUMA BIRABWA KABEGA, the biological mother of the Applicant. She is aged 70 years. She presented an introductory letter from Balintuma Zone LCI. She presented a residential identity card.</p> <p>Learned counsel Mr. Ochieng Evans submitted that this surety has sufficient nexus to the Applicant and she is traceable.</p> <p>The Second Surety was KAMBUGU MAKANGA JOSEPH.</p> <p>He is aged 64 years. He is a retired  Grade III Teacher. He is the LCI Chairperson of Kazinga Zone. He is engaged in farming. He has availed his National Identity Card. He owns a permanent home at Kazinga Zone. He has availed to Court a certificate of title for his land at Kazinga. He is an immediate neighbour to the Applicant. The surety has known the Applicant since the latter was a child. The two have been friends.</p> <p>The third surety was WAMUBI JUMA MAJUGO. He is aged 36 years. He attached a copy of his National Identity Card. He resides at Kireka, Bbira, Musaale LCI. He has a permanent home there. He is a Medical Practitioner holding a Diploma in Orthopaedic Medicine. He works with M/S Comfort Home Care, a Medical Centre at Nansana. He also works at M/S Galilee General Community Hospital at Masanafu.</p> <p>He knows the Applicant and his place of residence.</p> <p>The fourth surety was SSUNA SHAFIKI.</p> <p>He is aged 38 years. He availed copies of his National Identity Card, Driving Permit and Passport. He resides at Lugala Zone, Lubya Parish, Rubaga Municipality, in KCCA. He has a permanent house there. He is a Businessman/importer. He imports agricultural machinery spare parts from China. He has a shop at Shamba Complex along Nabugabo Road in Kampala. The Applicant is his religious instructor and personal Doctor. The two are brothers in Islam.</p> <p>Learned Counsel Mr. Ochieng Evans submitted that he explained to the sureties their duties. He prayed this Court to find that they are substantial. Counsel submitted that the sureties will ensure that the Applicant attends his trial.</p> <p>Counsel referred to ten (10) authorities furnished to Court which give the Principles for granting bail. He submitted that Court needs to be satisfied that the Applicant will turn up to</p> <p> </p> <p> </p> <p>take his trial. Counsel prayed this Court to find merit in the application, and to impose reasonable terms of bail.</p> <p>The learned Senior State Attorney, Ms. Lilian Omara clarified that the Applicant was granted bail in Nakawa Chief Magistrate’s Court Case No. 29 of 2014. She informed Court that the 2010 bombing case was Nakawa Chief Magistrate’s Court Criminal Case No. 574 of 2010. She submitted that the Applicant lied when he purported to relate his bail to the 2010 bombing case. She asserted that the Applicant was never granted bail in relation to the 2010 bombing case.</p> <p>On this matter this Court observes that if there had been proper co-ordination between Etwop Ben Odurkami, D/ASP and the Learned Senior State Attorney the above clarification could have been part of Etwop’s affidavit. An examination of the Applicant’s bail bond form, attached to his affidavit in support of the application and marked Annexture “A”, shows that the Applicant’s bail application [HCT-MISC. APPL. NO. 94 of 2014 arising from Nakawa Chief Magistrate’s Case No. 29 of 2014] related to charges brought under the Anti-Terrorism Act, 2002.</p> <p>The bail bond Form shows that the Applicant executed the bond on 23<sup>rd</sup> July, 2014 and he, thereafter, duly attended Court in compliance with the bail terms on 22. 8. 2014, 22. 9. 2014, 22. 10. 2014, 24. 11. 2014, and 05. 01. 2015 as directed by the Deputy Registrar.</p> <p>That evidence has not been controverted by any evidence from the Respondent.</p> <p>The Learned Senior State Attorney submitted that all the sureties are not substantial. Concerning Fatuma Birabwa Kabega, the biological mother of the Applicant, the learned Senior State Attorney submitted that she appeared weak either from her age or possible ailment. Learned Counsel doubted her ability to monitor the Applicant’s movements and report to Court.</p> <p>This Court disqualifies this surety but for a different reason.</p> <p>In Kenny’s outlines of Criminal Law, 19<sup>th</sup> Edition at Page 586 Note 708 the Learned author advised Courts in exercising the discretion to admit a remand Prisoner to bail to consider what likelihood there is of his failing to appear for trial. The Courts were advised also to consider whether the proposed sureties are independent or are likely to be indemnified by the accused.</p> <p>Whereas it is important that Fatuma Birabwa Kabega, as a biological mother, has sufficient and very close nexus to the Applicant, her age renders her vulnerable and erodes her independence as a surety. It is the view of this Court that she cannot independently meet cash requirements of a bond executed by her without recourse to the Applicant.</p> <p>Concerning the second surety, Makanga Kambugu Joseph the learned Senior State Attorney pointed out that he also used the names Makanga Stephen Kambugu. She doubted the true identity of the surety. However, the view of this Court is that a photocopy of his National Identity Card shows the names Kambugu Joseph Makanga, and that is satisfactory.</p> <p>The documents relating to this surety were served on the Respondent. Parag. 5 of D/ASP Etwop’s affidavit contains a general statement that the proposed sureties are not substantial and will not be able to fulfil their duties. D/ASP Etwop did not state the basis of his assessment. Kambugu Joseph Makanga produced an introduction letter signed by the Secretary LCI, Kazinga Zone. This Court considers that sufficient.</p> <p>The third Surety presented a copy of his National ID Card and an introduction letter signed by the LCI Chairman Kireka-Bbira, Musaale “A”. He presented a Certificate of Good Standing issued by The  Allied Health Professionals Council.</p> <p>He also produced a copy of his Diploma in Orthopaedic Medicine issued to him by the Uganda Allied Health Examinations Board. He told Court his two places of work. This Court is of the view that this surety is sufficiently traceable.</p> <p>The fourth Surety, Suuna Shafiki presented copies of his National ID Card, Driving Permit and Passport. He has a Permanent home at Lugala Zone, Lubya Parish, Rubaga Municipality. He produced a Certificate of Registration of the name of his business – SS AGRO MACHINERY &amp; GEN. HARDWARE. He presented a Sale Agreement for a Plot of land at Lugala LCI executed by the parties thereto and LC Officials.</p> <p>This Court is of the view that this surety is sufficiently traceable. His place of work is known.</p> <p>Furnishing exceptional circumstances is not the sole consideration for applications for bail. The Court has to consider whether the applicant for bail will not abscond when released from custody. (see S. 15 (1) (b) and (4) of the T.I.A.)</p> <p>I have considered the legal authorities cited by Counsel for the Applicant. I have particularly examined the circumstances in – High Court Criminal Misc. Appl. No. 075 of 2016 (arising from Jinja Criminal Cases No. 0059/2016 and 0064/2016):</p> <p>His Majesty Omusinga Mumbere Charles Wesley</p> <p>Versus</p> <p>Uganda</p> <p>In that case the applicant was Jointly with others charged Vide Kasese CRB 242/2016, Court Criminal Case No. A. 59/2016 and Kasese CRB 881/2016, Court Criminal Case No. A. 64/2016, with multiple offences of terrorism, murder, attempted Murder, aggravated robbery, treason, and malicious damage to property. At the time of the application for bail police investigations were still on going. The applicant was a cultural King of the Rwenzururu Kingdom and wielded considerable influence over his subjects in Kasese area.</p> <p>In this position as King the applicant was entitled to Government Protection and Security over his person and home. He presented to Court six  sureties, five being sitting Members of Parliament from Kasese area and the sixth being a former Prime Minister of the Applicant’s Kingdom.</p> <p>The learned Judge Eva K. Luwata relied on the well known principles –</p> <ol><li>That bail is a right guaranteed by the Constitution under Article 23 (6) (a).</li> <li>That this right is founded on another right to a fair hearing enshrined in Article 28 of the Constitution, particularly, Clause 3 (a) which provides:</li> </ol><p>“ (3) Every person who is charged with a criminal offence shall –</p> <ol style="list-style-type:lower-alpha"><li>Be presumed to be innocent until proved guilty or until that person has pleaded guilty.”</li> </ol><p>The learned Judge reiterated what appears in almost all the authorities on bail. She said:</p> <p>“ In our law, the Primary purpose of bail should be to ensure that the applicant appears to stand trial without the necessity of being detained in custody during the period of trial.”</p> <p>The various authorities have established the principle that the Court must be satisfied that the applicant will appear for trial and not abscond. If facts come to light that there is a substantial likelihood of the applicant offending bail, it is advisable to reject the application.</p> <p>Regarding the severity of the charges, it was the view of Justice MULENGA, JSC (RIP) in ATTORNEY GENERAL VS. TUMUSHABE (2008) E.A. 26 QUOTED IN OKELLO AUGUSTINE VS. UGANDA, Criminal Misc. Application No. 006/2012 (unreported) where he said_____</p> <p>“ It is clear to me that Clause 6 of Article 23 applies to every person awaiting a trial for a criminal offence without exception. Under paragraph (a) of that clause, every such person at any time, upon or after being charged, may apply for release on bail, and the Court may at its discretion, grant  the application irrespective of the class of criminal offence for which the person is charged.”</p> <p>Courts have been cautioned not to treat refusal of bail as a punishment against the applicant or to deprive one of liberty unreasonably. The preference has been to allow the accused the full benefit of his Civil Liberties, the gravity of the charges against him/her notwithstanding.</p> <p>The sureties were cautioned that they may be required to pay the value of their bonds in case the applicant absconds. None of them appeared shaken. I consider the three sureties presented substantial.</p> <p>Unlike the case of Omusinga Mumbere Charles Wesley who was said to be aged 65 years in this case the Applicant has not pleaded any exceptional circumstances. However, in my view this is not fatal to the application.</p> <p>In the instant case I have considered the following factors:-</p> <ol><li>The need to give the applicant for bail the full benefit of his constitutional rights and freedoms.</li> <li>The absence of any evidence that the applicant may cause lawlessness to society if released on bail.</li> <li>Absence of any evidence from the Respondent that there is a risk of the Applicant absconding.</li> <li>Absence of any evidence that the Applicant has any likelihood of interfering with the course of Justice.</li> <li>The seriousness of the charges against the Applicant.</li> <li>Absence of any evidence that the Applicant is likely to commit other offences while on bail.</li> <li>Absence of any indication that the Applicant is violent or threatens violence against anyone.</li> <li>Absence of any evidence that the Applicant is likely to interfere with the prosecution’s witnesses.</li> <li>The status of the case that after more than one year and three months the Chief Magistrate’s Court committal file has not been delivered to ICD.</li> <li>The Constitutional requirement that the Applicant must be presumed to be innocent until he is proved guilty or until he pleads guilty.</li> <li>The caution that bail should not be refused as a form of punishment for the Applicant.</li> <li>The presence of sound sureties within the jurisdiction of this Court who are ready to undertake that the Applicant shall comply with the conditions of his bail.</li> <li>The fact that the Applicant has a wife and children and leads a settled existence, with a fixed place of abode within the Jurisdiction of this Court.</li> <li>The evidence furnished to this Court that on a previous occasion the Applicant was granted bail and he duly reported to the Deputy Registrar as he was directed.</li> <li>Absence of any information from the Respondent that there are other charges pending against the Applicant.</li> </ol><p>Considering all the foregoing factors this Court is satisfied that the Applicant will return to attend his trial. Accordingly, this application is allowed, and the applicant shall be released on bail but with conditions.</p> <p>However, before I set the bail conditions, I wish to make some observations for the education of the Security organs.</p> <p>The Constitution of Uganda (1995) has confirmed and guaranteed fundamental rights of persons arrested and detained for and accused of serious criminal offences. Ordinarily a person exercises and enjoys his/her liberty. Such liberty is taken away when there is reasonable suspicion that the person has committed or is about to commit a criminal offence.</p> <p>The Police undertake investigations to establish the truth of their suspicion. In capital offences the Police and Prosecution are given 180 days [the Statutory remand period] within which__</p> <ol style="list-style-type:lower-roman"><li>To complete investigations or inquiries;</li> <li>To prepare an indictment and a Summary of the case.</li> <li>To cause the accused to be produced in Court for a Magistrate to read out and explain the indictment to the accused person and to commit him/her for trial by the High Court.</li> <li>To give to the accused person a copy of the indictment and the summary of the case.</li> </ol><p>After Committal the accused person is entirely in the hands of the High Court.</p> <p>Despite the indictment for Capital offences and the committal of the accused person for trial he or she is entitled to apply to the High Court to be released on bail.  The Court has discretion to grant that person bail on such conditions as it considers reasonable.</p> <p>When  an accused person applies for bail the Prosecution and the police are given an opportunity to produce evidence of any serious concerns of the state in objection to the application.</p> <p>Judicial Power is derived from the people of Uganda, and it is exercised by the Courts on their behalf. The people have never said that a person accused of terrorism related offences should never be released on bail.</p> <p>Nor have they said that a person who is arrested by Counter-terrorism officers or a combination of security organs should never be released by Court on bail. Players in the criminal justice system have specific roles. It is important that we recognise, understand and respect each other’s roles. Some public officers carry out their roles with the aid of weapons. Others do so with the aid of pens. Either method is empowered by the people through the Constitution and other laws.</p> <p>As the different players execute their functions they should have clear vision and observance of the Constitutional provisions and the law. No organ should exercise too much power in total disregard of the roles of the other organs. The people of Uganda have not given any single organ of state all powers and responsibilities to do everything. The Constitution and other laws must be seen to operate and to have effect.</p> <p>We should not believe in the existence of any “above” who gives orders which violate the Provisions of the Constitution and the Laws. For example, there is no “above” who can give Orders to overrule and render nugatory the Orders of any Competent Court.</p> <p>It is only bad or uninformed officers in the security organs who can flagrantly disrespect Court Orders. We should all bow our heads to the governance of the Rule of Law.</p> <p>Having Ordered the release of the Applicant on bail I give the following conditions which he must fulfil:-</p> <ol><li>The Applicant is to enter an undertaking with the Registrar, ICD, in an amount of shs. 20 Million (Not Cash) guaranteeing that he will attend Court to take his trial or otherwise as indicated by the Registrar.</li> <li>Each of the three sureties for the Applicant will also enter an undertaking with the Registrar (ICD) in an amount of shs. 10 Million (Not Cash) guaranteeing that the Applicant will attend Court to answer the indictment against him or otherwise as indicated by the Registrar.</li> <li>Within a period of one week from the date of this Order the Applicant must surrender to the Registrar (ICD) his Passport.</li> <li>The Applicant, after his release on bail, must report to the Registrar (ICD) twice every month on every second Tuesday and on every last Tuesday of the month.</li> <li>The Applicant shall at all times be disciplined, humble and co-operate with any security Officers who may from time to time approach him while carrying out surveillance work.</li> <li>The Applicant shall not engage in any rhetoric or make addresses to any congregation or in any other way cause Public excitement, but he can lead fellow Muslims in Prayer using humble and sober language.</li> <li>If the Applicant has to carryout any instruction of students or adult persons in religious matters he must allow security officers to Monitor his teachings and be ready to surrender any teaching materials or aids to the Security organs.</li> <li>The Applicant shall restrict visitors to his place of residence and he should be prepared to identify any visitor to security officers when called upon so to do.</li> </ol><p>I so order.</p> <p>Delivered on 10<sup>th</sup> April 2018</p> <p> </p> <p><strong>Hon. Moses Mukiibi</strong></p> <p><strong>JUDGE and Head, International Crimes Division.</strong></p> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-a876d230f772a3a10c44aef722a7882b425cd6fc35c802a57998c7437cbfd2c9"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p><strong>HOLDEN AT INTERNATIONAL CRIMES DIVISION KOLOLO</strong></p> <p><strong>CRIMINAL MISCELLANEOUS APPLICATION NO. 001 OF 2018.</strong></p> <p><strong>[Arising from the Chief Magistrate’s Court of Jinja Holden at Jinja Case No. AA No. 25/2016, DPP Case No. HQS – CO- 0229 – 2016, Police Case No. CID HQTRS E/109/2016]</strong></p> <p><strong>DR. ISMAIL KALULE::::::::::::::::::::::::::::::::APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>UGANDA::::::::::::::::::::::::::::::::::::::::::::RESPONDENT</strong></p> <p><strong>BEFORE: HONOURABLE MR. JUSTICE MOSES MUKIIBI</strong></p> <p><strong>RULING</strong></p> <p>The Applicant, DR. ISMAIL KALULE, has applied to this Court to be released on bail pending his trial. The Applicant was arrested on the 26<sup>th</sup> day of May, 2016 at the High Court Criminal Division soon after his acquittal of several counts of terrorism and Murder by this Court. He was detained at Nalufenya Police Station. On the 2<sup>nd</sup> day of June, 2016 he was taken before the Chief Magistrate’s Court at jinja where charges in two counts were read to him. The charges were:</p> <ol style="list-style-type:lower-roman"><li>Terrorism Contrary to Section 7 (1) and (2) (w) of the Anti-Terrorism Act, 2002; and</li> <li>Conspiracy to Commit Terrorism Contrary to Section 25 of the Anti-Terrorism Act, 2002.</li> </ol><p>The Chief Magistrate’s Court ordered that the Applicant be remanded at Kirinya Prison. The Applicant claims that he was returned to Nalufenya instead.</p> <p>The Applicant further claims that he was “remanded” at Nalufenya Police Station for several months. One wonders whether the Applicant was not attending Court for further remands. Why did it take his Advocate months to complain to the Chief Magistrate?</p> <p>Eventually, the Applicant was remanded at Luzira Government Prison. The Applicant was committed on the 19<sup>th</sup> day of December, 2016 for trial for trial by this Court.</p> <p>The Applicant filed this application on 15<sup>th</sup> February, 2018. By that date one year one month and twenty five days had gone by since his committal.</p> <p>This Court has established that the Committal file has not been received by this Division from the Chief Magistrate’s Court of Jinja. Therefore, the Applicant’s Case has not yet been registered at the ICD Registry. It has not been established in which Division of the High Court the Applicant’s case is pending trial. However, the Applicant has been on remand at Luzira Prison since the 19<sup>th</sup> day of December, 2016, waiting to hear from the High Court something concerning his trial. Hence, this application seeking to be released on bail.</p> <p>The Applicant did not plead and does not seek to rely on the existence of exceptional circumstances provided for in Section 15 (1) (a) and defined in Section 15 (3) of the Trial on Indictments Act [Cap. 23].</p> <p>Is the Applicant a person accused of an offence specified in Sub-Section (2) of Section 15 of the Trial on Indictments Act?</p> <p>Sub-Section (2) of Section 15 provides in –</p> <p>Parag. (a) an offence triable only by the High Court; and in</p> <p>Parag. (b) an offence under the Penal Code Act relating to acts of terrorism-----.</p> <p>The Applicant was charged under the Anti-Terrorism Act, 2002.</p> <p>Section 6 thereof provides as follows:-</p> <p>“ The offence of terrorism and any other offence punishable by more than ten years imprisonment under this Act are triable only by the High Court and bail in respect of those offences may be granted only by the High Court.”</p> <p>So, Terrorism Contrary to Section 7 (1) and (2) being an offence triable only by this Court an application for bail in respect of Count I of the charges preferred against the Applicant should rightfully be made to this Court under both___</p> <ol><li>Section 6 of the Anti-Terrorism Act, 2002;</li> <li> </li> <li>Section 14 (1) of the Trial on Indictments Act.</li> </ol><p>Section 15 (1) of the Trial on Indictments Act provides____</p> <p>“(1) Notwithstanding Section 14, the Court may refuse to grant bail to a person accused of an offence specified in Sub-Section (2) if he or she does not prove to the satisfaction of the Court_____</p> <ol style="list-style-type:lower-alpha"><li>That exceptional circumstances exist justifying his or her release on bail; and</li> <li>That he or she will not abscond when released on bail”.</li> </ol><p>In Constitutional Reference No. 20/2005 Uganda (DPP) Vs. Col. (Rtd.) Dr. Kiiza Besigye the Constitutional Court, on its own, offered to discuss a situation where the accused is charged with an offence only triable by the High Court but has not spent the Statutory period of 180 days in custody before committal. The Court observed that Court may refuse to grant bail where the accused fails to show to the satisfaction of the Court exceptional circumstances under S. 15 (3) of the Trial on Indictments Act.</p> <p>The Constitutional Court observed that the sole purpose of the Trial on Indictments (Amendment) Act, No. 9 of 1998, and the Provision for exceptional  circumstances, was to operationalise Article 23 (6) ( c) for accused persons desirous of applying for release on bail before the expiry of the Constitutional time limit of 180 days.</p> <p>The Constitutional Court, however, said –</p> <ol style="list-style-type:lower-roman"><li>That Article 23 (6) (a) of the Constitution confers discretion upon the Court whether to grant or not to grant bail; and</li> <li>That the exceptional circumstances set out in S. 15 (3) of the Trial on Indictments Act are regulatory.</li> </ol><p>This Court is supposed to consider each application for bail on its own merits.</p> <p>In an affidavit sworn in support of this application, ISMAIL KALULE, the Applicant stated_</p> <p>In Parag. 2 – that he is a Medical Doctor;</p> <p>In Parag. 4 – that he was granted bail by the High Court and he attended Court religiously whenever he was required to attend;</p> <p>In parags 3 and 5 – that he was arrested in 2010 in connection with the bombing at Lugogo and the Ethiopian Village Restaurant and that he was charged with several counts of Terrorism and Murder, but he was tried and acquitted by the High Court of all the charges on 26<sup>th</sup> May, 2016.</p> <p>In Parag. 6 – that on 26<sup>th</sup> May, 2016 while in the Criminal Division of the High Court of Uganda he was arrested and later detained at Nalufenya;</p> <p>In parag. 8 – that on 2<sup>nd</sup> June, 2016 he was taken before the Chief Magistrate’s Court at Jinja where charges in two counts were read to him and he was remanded at Kirinya Prison, but the police disobeyed Court and took him back to Nalufenya.</p> <p>In parag. 11 – that he does not intend to plead guilty.</p> <p>In parag. 16 – that he has a family with a wife and children whom he looks after, and that he intends to appear in Court at all time to attend his trial in Order to clear his name of the charges levelled against him.</p> <p>In Parag. 17 – that he has a fixed place of abode at Kiwatule, Kazinga Zone, Kira Municipality, Wakiso District.</p> <p>In parag. 18 – that apart from the charges the subject matter of this application there are no other criminal charges pending against him.</p> <p>In parag. 19 – that he has sound and substantial sureties within the Jurisdiction of this Court who have undertaken to ensure that he complies with the conditions of bail.</p> <p>In parag. 20 – that there is no likelihood of him interfering with investigations or witnesses.</p> <p>In parag 21 – that eversince his re-arrest and committal to the High Court he has spent over one and half years in custody with no indication as to when he will be tried.</p> <p>In parag. 22 – that the offences are bailable by this Court.</p> <p>In parag. 23 – that he undertakes to abide by any and all the bail conditions imposed upon him by this court and that he will not abscond if released on bail.</p> <p>In parag. 24 – that once released on bail he undertakes to abide by any conditions this court may set and that he will turn up for his trial as and when the Court wants him.</p> <p>In parag. 25 – that it is only fair, Just, Constitutional and in the best interests of Justice that he be granted bail pending his trial.</p> <p>In a Supplementary affirmation dated 21<sup>st</sup> March, 2018 the Applicant stated______</p> <p>In parag. 3 – that as a Medical Doctor he had a Clinic, Homeopathic Clinic at Plot  51 Rashid Khamis Road, Kampala.</p> <p>In Parag. 4 – that he is married to Ismail Hadijjah and the two have four school going children, namely_____</p> <ol style="list-style-type:lower-roman"><li>Fatimah Ismail aged 12 years,</li> <li>Azam Ismail aged 10 years,</li> <li>Wasiim Ismail aged 8 years, and</li> <li>Nadim Ismail aged 5 years.</li> </ol><p>That the children go to Grammar Primary School at Kiwatule.</p> <p>In Parag. 5 – that he has, at Kiwatule Kazinga Zone, a permanent residential house where his wife and children reside.</p> <p>The Prosecution filed an affidavit in objection to bail. It was sworn by one ETWOP BEN ODURKAMI, Detective Assistant Superintendent of Police (D/ASP) a CID Officer, dated 13<sup>th</sup> March, 2018.</p> <p>He stated in parag. 4 ____</p> <p>That the offence with which the applicant is charged is grave and carries a maximum sentence of death upon conviction and that once the applicant is granted bail, it is highly probable that he will abscond from the Court Process.</p> <p>He stated in parag 5_____</p> <p>That the proposed sureties are not substantial and will not be able to fulfil their duties.</p> <p>He stated in parag. 2_______</p> <p>That he is one of the investigating officers in the Case.</p> <p>I have a lot of respect for Police Officers but I wonder if anybody has educated them on the importance of the evidence by way of affidavits which they present to Courts.</p> <p>Where the charges relate to terrorism a Court may refuse to release a person on bail  if it is satisfied that it is for the protection of the public that an accused should not be released from custody.</p> <p>The interest and concerns of the state would be taken into consideration if evidence is presented to court.</p> <p>Etwop Ben Odurkami, D/ASP (CID) did not state any danger to the Public of which the police/prosecution may be apprehensive. Nor did he state either specifically or generally any prosecution witnesses whom the applicant may interfere with if released on bail. No mention was made of any grounds for fears that when released from custody the Applicant is likely to commit other offences. The Police/Prosecution has not produced any evidence that there is a risk of the Applicant absconding.</p> <p>There is no evidence from the Respondent that investigations are still continuing, and that the Applicant may access important prosecution evidence and, may be, cause it to  disappear.</p> <p>There is no evidence presented to this Court of any special interest of the State which this Court should take into consideration.</p> <p>Therefore, there is no evidence to satisfy this Court that it is for the protection of the public that the Applicant should not be released from custody.</p> <p>The Applicant referred to his good conduct when he was previously granted bail. Etwop Ben Odurkami, D/ASP has not presented any evidence to controvert the Applicant’s claim.</p> <p>The Applicant stated that he has ever been charged with several counts of terrorism and murder. He claimed that he was put on trial but was acquitted by the High Court of all the charges on 26<sup>th</sup> May, 2016.</p> <p>What this Court understands from the Applicant’s reference to his past record is that he is not under great fear because of the present charges after his previous experience. He wants this Court to believe that he is not likely to run away because of any fear of the charges. Etwop Ben Odurkami, D/ASP has not presented any evidence to induce this Court to hold a contrary view.</p> <p>If there are any genuine concerns on the part of the state they should be disclosed to court in a manner provided by law for that purpose.</p> <p>Learned Counsel Mr. Ochieng Evans represented the Applicant. On the other hand the state was represented  by the learned Senior State Attorney, Ms. Lilian Omara.</p> <p>Learned Counsel Mr. Ochieng Evans submitted that the Applicant is seeking to be released on bail pending his trial. He made reference to an affidavit in support of the application dated 15<sup>th</sup> February, 2018 sworn by the Applicant. He also relied on a Supplementary affirmation made by the Applicant.</p> <p>He submitted that the grounds for the Application stated in the Notice of Motion had been expounded in the two affidavits.</p> <p>Learned Counsel Mr. Ochieng Evans submitted that the Applicant is presumed to be innocent. He cited Article 28 (3) (a) of the Constitution. Counsel submitted that under Article 23 (6) of the Constitution the Applicant is entitled to apply for release on bail.</p> <p>Counsel made reference to the contents of the two affidavit/affirmation sworn/made by the Applicant. He submitted that the Applicant is a person who can be trusted to come back and attend his trial.</p> <p>Counsel presented four sureties to court.</p> <p>The first surety was FATUMA BIRABWA KABEGA, the biological mother of the Applicant. She is aged 70 years. She presented an introductory letter from Balintuma Zone LCI. She presented a residential identity card.</p> <p>Learned counsel Mr. Ochieng Evans submitted that this surety has sufficient nexus to the Applicant and she is traceable.</p> <p>The Second Surety was KAMBUGU MAKANGA JOSEPH.</p> <p>He is aged 64 years. He is a retired  Grade III Teacher. He is the LCI Chairperson of Kazinga Zone. He is engaged in farming. He has availed his National Identity Card. He owns a permanent home at Kazinga Zone. He has availed to Court a certificate of title for his land at Kazinga. He is an immediate neighbour to the Applicant. The surety has known the Applicant since the latter was a child. The two have been friends.</p> <p>The third surety was WAMUBI JUMA MAJUGO. He is aged 36 years. He attached a copy of his National Identity Card. He resides at Kireka, Bbira, Musaale LCI. He has a permanent home there. He is a Medical Practitioner holding a Diploma in Orthopaedic Medicine. He works with M/S Comfort Home Care, a Medical Centre at Nansana. He also works at M/S Galilee General Community Hospital at Masanafu.</p> <p>He knows the Applicant and his place of residence.</p> <p>The fourth surety was SSUNA SHAFIKI.</p> <p>He is aged 38 years. He availed copies of his National Identity Card, Driving Permit and Passport. He resides at Lugala Zone, Lubya Parish, Rubaga Municipality, in KCCA. He has a permanent house there. He is a Businessman/importer. He imports agricultural machinery spare parts from China. He has a shop at Shamba Complex along Nabugabo Road in Kampala. The Applicant is his religious instructor and personal Doctor. The two are brothers in Islam.</p> <p>Learned Counsel Mr. Ochieng Evans submitted that he explained to the sureties their duties. He prayed this Court to find that they are substantial. Counsel submitted that the sureties will ensure that the Applicant attends his trial.</p> <p>Counsel referred to ten (10) authorities furnished to Court which give the Principles for granting bail. He submitted that Court needs to be satisfied that the Applicant will turn up to</p> <p> </p> <p> </p> <p>take his trial. Counsel prayed this Court to find merit in the application, and to impose reasonable terms of bail.</p> <p>The learned Senior State Attorney, Ms. Lilian Omara clarified that the Applicant was granted bail in Nakawa Chief Magistrate’s Court Case No. 29 of 2014. She informed Court that the 2010 bombing case was Nakawa Chief Magistrate’s Court Criminal Case No. 574 of 2010. She submitted that the Applicant lied when he purported to relate his bail to the 2010 bombing case. She asserted that the Applicant was never granted bail in relation to the 2010 bombing case.</p> <p>On this matter this Court observes that if there had been proper co-ordination between Etwop Ben Odurkami, D/ASP and the Learned Senior State Attorney the above clarification could have been part of Etwop’s affidavit. An examination of the Applicant’s bail bond form, attached to his affidavit in support of the application and marked Annexture “A”, shows that the Applicant’s bail application [HCT-MISC. APPL. NO. 94 of 2014 arising from Nakawa Chief Magistrate’s Case No. 29 of 2014] related to charges brought under the Anti-Terrorism Act, 2002.</p> <p>The bail bond Form shows that the Applicant executed the bond on 23<sup>rd</sup> July, 2014 and he, thereafter, duly attended Court in compliance with the bail terms on 22. 8. 2014, 22. 9. 2014, 22. 10. 2014, 24. 11. 2014, and 05. 01. 2015 as directed by the Deputy Registrar.</p> <p>That evidence has not been controverted by any evidence from the Respondent.</p> <p>The Learned Senior State Attorney submitted that all the sureties are not substantial. Concerning Fatuma Birabwa Kabega, the biological mother of the Applicant, the learned Senior State Attorney submitted that she appeared weak either from her age or possible ailment. Learned Counsel doubted her ability to monitor the Applicant’s movements and report to Court.</p> <p>This Court disqualifies this surety but for a different reason.</p> <p>In Kenny’s outlines of Criminal Law, 19<sup>th</sup> Edition at Page 586 Note 708 the Learned author advised Courts in exercising the discretion to admit a remand Prisoner to bail to consider what likelihood there is of his failing to appear for trial. The Courts were advised also to consider whether the proposed sureties are independent or are likely to be indemnified by the accused.</p> <p>Whereas it is important that Fatuma Birabwa Kabega, as a biological mother, has sufficient and very close nexus to the Applicant, her age renders her vulnerable and erodes her independence as a surety. It is the view of this Court that she cannot independently meet cash requirements of a bond executed by her without recourse to the Applicant.</p> <p>Concerning the second surety, Makanga Kambugu Joseph the learned Senior State Attorney pointed out that he also used the names Makanga Stephen Kambugu. She doubted the true identity of the surety. However, the view of this Court is that a photocopy of his National Identity Card shows the names Kambugu Joseph Makanga, and that is satisfactory.</p> <p>The documents relating to this surety