Courting trouble

By Haggai Matsiko

Lawyers, public bicker over whether terrorist bombing convicts should have got only 25 and five years in jail for killing 80 people

The 25 and five year jail sentences awarded to the self-confessed terrorists involved in the July 11, 2010 twin-bombings in Kampala have sparked heated debate among lawyers and the general public.

The bombs exploded at two entertainment venues, the Ethiopian Village Restaurant and the Kyadondo Rugby Grounds in Kampala killing 76 people as they watched the football World Cup final televised from South Africa.

Edris Nsubuga admitted detonating one of the bombs while Mahmoud Mugisha admitted fighting for the Somalia-based Islamic militant group, the al Shabaab and conspiring to commit terrorism and the International Crimes Division (ICD) of the High Court in Kampala on Sept. 12 sentenced them to 25 and five years respectively.

But the sentences handed to them by the trial judge, Justice Alphonse Owiny-Dollo, have been criticised as “lenient” and “hurried.  Some critics claim it is unusual for a trial involving the murder of 76 people to be heard and suspects convicted in so short a time.

Francis Mugoga, the director of an association of survivors of the attacks, called the July 11 Survivor’s Network, says the duo deserved a harsher sentence.

“They should have given them like 50 years or life imprisonment,” he said.  But the convicts’ lawyer Alex Bashasha says the judge had accepted that the men could be rehabilitated.

The maximum sentence for terrorism in Uganda is death. But in his sentence, Justice Owiny-Dollo said he had considered Nsubuga’s show of contrition and the prosecution decision to charge Mugisha with the lesser offence of conspiracy to commit terrorism.

Nsubuga told the court that he detonated a remote-controlled device that he planted at the venue because he had been threatened with death if he did not.

“I was just a human being trapped in a web of delusion and manipulation,” he told the court.

“I have listened to his (Nsubuga’s) expression of contrition, which I consider genuine,” Justice Owiny-Dolo ruled.

“He (Mugisha) would have been liable to suffer death, in light of the role he played in securing a place from which the terrorist acts were to be carried out. As it is, he was charged with and pleaded guilty to the lesser offence, which attracts a maximum sentence of seven years on conviction,” he added.

The International Crimes Department (ICD) of the High Court of Uganda, which has been relatively idle since it was established in 2008, has lately been in the news for controversial reasons.

It was established at the height of the Juba Peace Talks between the government and rebels of Joseph Kony’s Lord’s Resistance Army. It was designed to try alleged war crimes committed by the LRA rebels instead of such cases being referred to the International Criminal Court (ICC) in The Hague. The court’s relevancy was punctured why Kony, who had put protection from trial at the ICC as a condition, refused to sign.

“There has been pressure on the court to justify its existence,” a lawyer who requested anonymity told The Independent to explain the speed of the trial.

Recently, the court was gearing to try former LRA commander, Thomas Kwoyelo. But its aspirations were scuttled when the Constitutional Court ruled that Kwoyelo, like all former rebels who denounce rebellion is entitled to amnesty under the Amnesty Act (2000)  and is, therefore, not liable to be tried for his alleged crimes.  The Constitutional Court ordered the ICD to terminate trying Kwoyelo.

The sentence of the July 11 bombers is being compared to that of Lydia Atim Draru, who was barely two weeks earlier on Sept.11 sentenced to 14 years in jail by the High court for the killing of former army commander, Maj. Gen. James Kazini and that of Akbar Hussein Godi, the former Arua Municipality MP who was sentenced to 25 years in jail for the murder of his 19-year old wife. Draru was convicted of manslaughter although the prosecution had conferred the graver charge of murder.

Draru’s case and that of the bombers have highlighted the role of confessions by criminals in influencing the outcome of cases. Several suspects in high profile cases have confessed and subsequently got what appear to be lenient sentences.

As one lawyer put it, sentencing suspects on the basis of such confessions halts “further thorough investigations that could have revealed interesting details of the case”. Critics say that in cases such as terrorism, it is important to consider each and every lead and thoroughly investigate before trying the suspects.

Critics say the terrorists, who had pleaded not guilty when the trial started on Sept.14, changed their after entering a deal with the prosecution to confess, get a lenient sentence, and then turn state witness.

Nsubuga,  Mugisha and 17 others were rounded up in security operations soon after the July 2010 attacks and have been on remand in Luzira Maximum security Prison in Kampala. Over time, some of them have been released without charge but 12 suspects remain in custody.

Nsubuga and Mugisha are expected to turn state witnesses in the trial of their co-accused but Jane Okuo, the Public Relations Officer of the Directorate of Public Prosecutions (DPP), dismisses claims of a deal with the convicted pair. She says that the convicts pleaded guilty and confessed on their own adding that although the prosecution announced that they would use them as witnesses, the DPP has sufficient evidence that can be used to try the remaining suspects without relying on Nsubuga and Mugisha.

Ladislaus Rwakafuzi, a renowned lawyer who had been approached to represent another suspect in the bombings, the Kenyan human rights lawyer, Al-Amin Kimathi who was freed without charge together with four others just days before the Nsubuga-Mugisha hearing started, said self-confession could not be a basis for a lenient sentence considering that the accused did not report or seek state security as should be when one’s life is threatened.

He agrees with Okuo that the convicts’ evidence against the other suspects cannot be weighed heavily unless it is collaborated with something else.

He said although the expeditious trial was good it came as a surprise.

“We thought it would take longer time or never be tried at all,” he told The Independent.

But retired Judge, Justice George Kanyeihamba, dismisses the argument for more time for thorough investigations. He says that, according to Ugandan law, for the police to arrest a person, they must have evidence that he committed a crime or else that person sues them for unlawful arrest and gets compensated.

Indeed, Rwakafuzi, says Kimathi who was arbitrarily arrested on Sept.15 last year on charges of terrorism while in Kampala to organise defense for the Kenyan terrorism suspects only to be acquitted recently is entitled to about $ 50,000 from the Ugandan government for unlawful arrest and malicious prosecution.

Kanyeihamba says sentencing a convict is at the discretion of the judge. He adds, however, that for a person to be convicted of a crime, the judge must be satisfied that whoever is prosecuting the suspect has proved the case beyond reasonable doubt. However, he says that one of the greatest evidence a judge can rely on is if the accused himself confesses.

Kanyeihamba also disagrees with the idea of thorough investigations. “If I come and tell you that this man was around when the bomb went off, then the man confesses himself and other witnesses saw him there, what other thorough investigations do you want?”

He says the value of evidence boils down to its credence and does not require it “to mature over time like wine”.

“It is not evidence because it is a thousand statements. It is one statement that puts the accused on the scene of the crime and the judge believes it,” he says. “It doesn’t matter whether it took seven seconds or seven years to acquire. At the end of the day, it is the weight and credence of the evidence (that matters).”

Critics say that trying the terrorism suspects very fast creates suspicion of the state’s interest in this particular trial.

But Kanyeihamba says such suspicion is misconceived because investigations of a case depend on the facts, circumstances and the witnesses. He says if a witness is discovered when they have already relocated to a far off location, the case will be delayed because the prosecution will have to wait for what they have to say.

“It depends on the circumstances under which the case took place that is why our law says that the police can ask for more time to investigate if they do not have sufficient evidence to prove that he acted beyond reasonable doubt,” he says.

Jane Okuo of the DPP’s office says it is not the government that determines what cases to be heard by courts and when. She says the DPP submits cases ready for trial to the court which determines and issues case lists indicating when certain cases will be heard. Hearing of the case of the remaining suspects is expected to resume on November 15.