Uganda v Kamoga Siraje & 13 Ors (Criminal Session Case No. HCT-00-ICD-CR-SC- No. 004 of 2015) [2017] UGHCICD 1 (21 August 2017)

“ 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.

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.

D/IP Mpamizo Kanyomozi (PW35), a 48 years old Police Officer testified attached to SID at Kireka who on 12^th/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.

Intention to cause the death of Dr. Haruna Jjemba

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.

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.

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

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^rd January, 2015.

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.

That the intention was manifested in overt acts:

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.

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.

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.

Whether the accused persons directly or indirectly participated in commission of the offences in count Nos. 2, 3 or 4.

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.

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.

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.

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.

COUNT NO.1: Terrorism Contrary to Section 7(1) and 2(b) of the Anti­Terrorism Act, 2002.

Essential Ingredients: The Prosecution is under a duty to prove beyond reasonable doubt all the four (4) ingredients, namely:

1. Actual, attempted or threatened murder, maiming or attack on a group of persons in a private or public institution;

2. 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;

3. 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.

4. The accused persons participated in the commission of the offence either by direct involvement or complicity.

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:

“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. ”

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:

“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”.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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 & Others v. Republic; Lubogo & Others v. Uganda; Joseph Kiiza & Others v. Uganda, supra].

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.

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.

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.

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:

“...you are a businessman; you should leave these things. You are not a sheikh...if not these children will kill you. ”

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;

“.../ was tired and not going to accept anything that was going to divide

Muslims and even if it meant killing I would kill those are joking and

have never killed but for me even if it is during daylight I can kill”.

Witness B also testified that A2 (Sheikh Yunus Kamoga) told him that (Witness B) that:

“Kirya cannot survive, those people are joking, for us we have guns”. Section 58 of the Evidence Act (Cap. 21) provides that:

“All facts, except the contents of documents, may be proved by oral evidence”. Section 59 of the same Act provides as follows:

“Oral evidence must be direct, that is to say:

1. 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;

2. 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. ”

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.

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.

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.

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.

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:

“Bahiga is like a snake in the saucepan. If you do not kill it, you cannot eat.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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^th Edition, at page 813 defines the same term as “an established organization especially one of a public character¹’.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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:

“What I told ...would stop us from reaching our goals has just started happening...”

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.

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.

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.

The above evidence, in our view, amounts to intimidation for religious purposes.

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.

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.

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”.

The above evidence, which implicates A1, A4 and A8, in our view, amounts to intimidation for political purposes.

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.

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).

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.

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.

Issue 3: Whether the acts in (1) were committed indiscriminately without regard to the safety of others or property:

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.

What meaning do we attach to the word indiscriminate? The question to guide the court is: what is indiscriminate in an act of terrorism?

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.

In Black’s Law Dictionary, Ninth Edition, page 843 indiscriminate attack is defined as follows: (International law): An aggressive act that:

1. Is not carried out for a specific military objective,

2. employs a means of combat not directed at a specific military objective, or

3. 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.

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.

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.

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.

Threat of murder; threat to maim; and attack on a person or group of persons

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):

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.

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.

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.

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.

After hearing from A2, he went back to Masaka. A2 however told him that on 20^th November 2014, he (A2) and his group would go to Nyendo for a Seminar to address all Muslims in the country.

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’.

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.

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.

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.

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’.

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.

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’.

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.

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.

PW28 pointed out that A2 and A3 made verbal threatening messages to him.

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.

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.

PW30 further testified that several other meetings were held and in one of them, they made three major resolutions to eradicate the enemy:

• to tarnish their names so that the public hold them in disrepute,

• to ambush any one and beat,

• to pour acid on any of them if possible.

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.

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.

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.

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.

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.

Court findings: The sequence of events as narrated in the testimonies above point to the following:

• 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.

• 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.

• 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.

• 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.

• 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.

Issue 4: That the accused persons participated in the commission of the offence either by direct involvement or complicity.

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.

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:

20. Joint offender in prosecution of common purpose.

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

The 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).

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.

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).

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).

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).

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

Siraje Kawooya), A.2 (Sheikh Muhamad Yunus Kamoga), and A4 (Sheikh Fahad Kalungi).

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.

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.

Conclusion:

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,

3. and 4.

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.

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

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.

Dated at Kampala this 21^st day of August, 2017.

E. K. Muhanguzi P. N. Tuhaise J. F.B. Kiggundu

JUDGE JUDGE JUDGE

SENTENCE AND REASON FOR THE SAME

Following conviction of accused Nos. 1, 2, 3, 4, 7 and 8 on 21^st August, 2017 on the count of Terrorism, Ms Rachael Bikhole - PSA, learned counsel for the prosecution for DPP, submitted that:

1. The offence was committed meticulously with premeditation.

2. Fear was instilled in the families and society at large.

3. Victims were traumatized and they live in fear.

4. Some of the victims listed on the fliers lost their lives.

5. Victims’ character were attacked and tarnished.

6. Security of victims and their families had to be beefed up.

7. The threats linger on.

8. The convicts are Muslim leaders, yet they orchestrated the crimes and were pivotal in the criminal enterprise.

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.

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”.

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.

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.

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.

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.

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.

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.

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.

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.

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:

1. 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.

2. Kakande Yusuf alias Abudallah and Sekayanja Abdulsalam alias Kassim Mulumba to 30 years prison term because they were not leaders but just followers.

Dated at Kampala this 22^nd day of August, 2017.