On March 25, Major Fredrick Kangwamu, the lead prosecutor in the treason trial of six former aides of Gen David Sejusa, told the army court chaired by Maj Gen Levi Karuhanga that Private Frank Ninsiima, one of the accused persons, voluntarily recorded a charge and caution statement admitting his role in planning to overthrow government.
Kangwamu rejected an earlier submission by defense counsel Dr David Mushabe that Ninsiima disowned his charge and caution statement because he made it under duress and at gunpoint.
Pt Ninsiima on March 16 disowned his charge and caution statement. He said he was tortured and threatened with death by Captain Albert Kashakamba attached to the Special Forces Command and enticed with a job offer by the Inspector General of Police Gen Kale Kayihura if he pinned Sejusa on treason charges. SIRAJE LUBWAMA recorded the proceedings below are excerpts.
Kangwamu: Counsel [Mushabe] labored to convince court that there is nothing in the charge and caution statement to show that Ninsiima accepted recruiting soldiers to overthrow the government. That nothing shows that Ninsiima was helping any person to overthrow government.
My lord, we submit that the particulars of count two of the charge sheet state that Ninsiima and others aided, abetted, counseled or procured LCpl Grace Ninsiima aka Rwakyozi [first accused], LCpl Geoffrey Karuhanga aka Mwebaze [second accused] to recruit soldiers from SFC into subversive activities intended to overthrow Uganda’s legitimate government.
When you read the statement on page five, lines 1-15, you will notice that Ninsiima narrates how he went up to Makajjo in Mityana district SFC detach to meet AI [Accused No I Nasasira] and A2 [Karuhanga] respectively. AI and A2 were soldiers in active service. Ninsiima also narrates how he went to Entebbe Lunyo barracks to look for Ronald Mugume.
Mugume is a serving soldier and corporal in SFC who testified on 15th January 2014 as PW3 [Prosecution Witness No 3], and told this court how Ninsiima met him at City Square and convinced him to get him soldiers from SFC to overthrow the government.
Ninsiima also talks about James Muhanguzi of Lunyo SFC barracks in Entebbe. Muhanguzi is a sergeant in SFC. Muhanguzi testified as PW4 on 15th January 2014 and told court how DWI and his group approached him through Mugume with the aim of recruiting him into subversive activities.
The charge sheet clearly indicates aiding and procuring soldiers to engage in subversive activities. DWI was not just meeting soldiers for fun. The reasons he aances are not genuine because PW3 and PW4 testified that he was procuring them into engaging in subversive activities against the government.
BETTER LIFE PROMISE
Evidence is a chain and you cannot delink one piece from the other. It is from the evidence in chief of witnesses such as PW3 and PW4 in the main trial that will help this court to appreciate Ninsiima’s role in this case. The testimonies of PW3 ad PW4 clearly give the reasons as to why DWI was meeting these soldiers. Remember, he was meeting only soldiers wanting to know their problems so that he lures them into subversive activities by promising them better life.
Still in the statement, DWI talks about the presence of James Nayebare [Accused No 4] during the time DWI was meeting Mugume. In the charge sheet, indeed, we have Nayebare among the accused. This clearly shows that DWI in a TWT [trial within a trial] was meeting these soldiers to entice them into joining him to carry out subversive activities against government.
The main issue to determine here is whether DWI held meetings with soldiers whether DWI held meetings with any of the co-accused. In the statement, DWI clearly admits to meeting SFC soldiers. The admission of a meeting alone is enough evidence to show the involvement of Ninsiima in charges he is answering before this court, since the charge sheet talks of aiding, procuring and counseling, which cannot be possible minus meetings that Ninsiima talks about in his statement.
Of course the person who drafted the charges in the charge and caution statement was not a prosecutor but merely a police officer. He did it for the purpose of having the statement recorded. But at least what he wrote reflects the offences in the charges before this court. It is, therefore, our submission that DWI’s statement reflects his participation in the commission of the crime for which he is jointly charged with others.
We pray that you find that the statement contains a confession in as far as meeting various soldiers and working for Gen Sejusa are concerned. We pray that you dismiss counsel’s submission on this point.
Before we take leave of the point, one may be tempted to ask himself that since the statement does not contain self- incriminating information as counsel for the accused would like this court to believe, why then is Ninsiima running away from the same?
Because it incriminates him.
Counsel contended that the copy of the statement presented in court was a photocopy. That according to DWI, he never signed any statement that was underlined.
Our response is that a document does not become a photocopy because it is underlined. Fortunately, the said copy is on court’s record. We request for your lordship’s indulgence to look at this statement for you to determine whether it is a photocopy or not. We pray that you find counsel’s submission on this point baseless and accordingly dismiss it.
Counsel submitted that Ninsiima eventually signed the statement at Kira [police division] because he felt his life was in danger. All the excerpts cited by Counsel from the testimony of Ninsiima are just a narration of alleged events that took place before he recorded the statement, which of course is a concoction of Ninsiima. These never took place at all, be it at Kira or elsewhere.
We still maintain that at the time of signing the statement, there was no prevailing threat since Capt Kashakamba was not at Kira police as Ninsiima reveals. Counsel tried very hard to weave his way through a maze of lies and inconsistencies in Ninsiima’s testimony in order for him to make matters add up, but with no success.
For instance, counsel has not at all challenged the contradictions and inconsistencies pointed out by the prosecution. But he ended up bringing up more inconsistencies.
Whereas DWI told court earlier that he never read through his statement, he now turns round to say that when he was signing the statement, it was not underlined.
What this shows you is that DWI in fact had the time to read through his statement since he knows English anyway. This also explains why his signature appears on each and every page of the statement.
Another contradiction is that DWI had told court that he signed because he feared Kashakamba and the snake, never mind that he never at any time saw any, he now turns around to tell court that he signed because of the gun. At first he says the gun was on his head, but later on changes to say that the gun was on his face.
The contradictions show you that there was no gun. DWI endeavors very hard to paint the picture of a gun, but his memory betrays him every time he mentions it, because he tries to imagine the position that would appear most horrible to court and ends up contradicting himself. My, lord, should you have reason to believe such a witness? Not at all.
Counsel also submitted that the burden in criminal matters lies on the prosecution. We have never at any one time submitted otherwise. What we still mention is that in a case like this, it is the accused alleging a fact and as such, he must prove it. This is the import of sections 102 and 103 of the Evidence Act.
What section 102 means is that the accused in this case is also required to prove that he was made to sign the statement under duress. This is because as prosecution, we presented the statement to court in evidence to prove that the accused confessed to participating in the crime.
It, therefore, means that if the accused does not come forward to prove that it was obtained under duress as he alleges, court would believe the prosecution. It is, therefore, not true for counsel to submit that DWI has no burden to prove torture. The only burden he does not have is to prove his innocence, which is at a later stage.
We, therefore ,submit that the accused has miserably failed to discharge this burden. Section 103 also requires the person alleging a certain fact to prove it. It is the accused alleging torture and it is him to prove it.
The accused, on the other hand, produced no witness or experts for this court to believe his word save for himself. The accused had his fellow accused whom he alleged he met at CPS and that they saw Kashakamba. But the accused brought none of those to prove that what he was telling court had some grain of truth, and he expects court to believe his story.
NO SINGLE SCAR
The accused claimed to have sustained injuries, but did not show this court even a single scar, and he expects this court to believe him, basing on counsel’s submission alone? Certainly not, court is all about evidence, but the accused has furnished none, and as such, we pray that your lordship disbelieves his story and find that his statement was voluntarily obtained.
Counsel submitted that the state relied on the particulars of the accused which he termed as irrelevant. He referred to issues like parents of the accused, his school and other personal particulars. He submitted that they could be obtained from the accused’s personal file which is a public document.
We submit that the particulars of the accused were not in the knowledge of the persons who recorded his statement. For instance, it is not true that you can obtain information about the schools the accused attended and details of how he deserted the army from his personal file.
You cannot also obtain from the accused’s personal file his work history in the office of the former coordinator for intelligence. We still submit that this was information that was within personal knowledge of the accused alone and was not known to the police officers who recorded his statement.
At the time of recording the statement, if at all there was any threat, which we deny, the same had been removed, thereby making the statement relevant as per section 25 of the Evident Act.
We also submit that the gist of section 24 of the Evidence Act is that for a confession to be held irreverent, it must be untrue. All the contents of the statement are very relevant in as far they are part of it. Contents like parents and detailed background of schools attended, the village where the accused comes from, when the accused started working with Gen Sejusa, are all important.
They go a long way to show that the accused was at peace while recording the statement and that is also why he had time to divulge all that information. The catchword here is that the confession will be accepted if it is true. We submit that the information in the statement was within the knowledge of the accused. It was so detailed and could only be known by the person who was a direct participant.
The accused did not inform his lawyers about the alleged torture until a statement came up. His lawyer could have raised the torture allegation at the commencement of the hearing. This shows you that the whole talk about torture was an afterthought.
Counsel also submitted that prosecution admits that there were threats by submitting that threats had been removed at the time of recording the statement. In response, we deny that there were any threats in the first place. But even if there were threats, which are denied, the said threats had been removed by the time the caution was administered, the absence of Kashakamba at Kira, the resurfacing of colleagues thought to have been killed and the absence of snakes at any one time.
In the instant case, the accused told court that it is true that he was at Kira police[station] and he appeared before DASP Ayebare. What he contests is the signing, which he claims was done forcefully. In any case, according to the accused, he was taken to Kira with one co-accused. We pray that you disallow the torture allegations.
According to section 24, a confession made by an accused person is irrelevant if its making appears to the court, having regard to the state of mind of the accused person and to all the circumstances, to have been caused by any violence, force, threat, inducement or promise calculated in the opinion of the court to cause an untrue confession to be made.
We also wish to point out the fact that the accused was not tortured and his mind was at peace he was able to concentrate and observe details and phenomenon that would be difficult if you were under torture all the time as alleged. For instance, the accused was able to observe the details of the vehicle that took them to Kira police from Kireka and noted that indeed it had words “Anti-corruption department”.
This shows that, indeed, the accused had a free mind to observe details, which you cannot do under difficult situations as alleged by him. The accused was also able to observe that the officer had two pens, one red and another black. Details again, which show you that the accused was at peace and not under torture.
That he recorded his charge and caution statement voluntarily as observed from the details and the fact that none of the alleged threats were ever visited on him that is the threats of snakes, the killing of his colleagues and the fact that he did not have any torture marks to talk about. We pray that your lordship finds that the statement was voluntarily recorded and accordingly admit it in evidence.
Source : The Observer