Uganda: Terrorism – Why Judge Freed the Five

Justice Alfonse Owiny-Dollo on Friday handed down sentences ranging from life in prison, 50 years and community service to eight of the 13 men accused of killing 76 people in twin bombings in Kampala in 2010.

In his ruling on Thursday, the judge had acquitted five of the accused - arguing that prosecution had not adduced compelling evidence against them. DERRICK KIYONGA explains why the five walked away free.

YAHYA SULEIMAN MBUTHIA

Prosecution had claimed that Kenyan Mbuthia was guilty because he made a lot of contact with Mohamed Ali Mohamed, who was sentenced to life in prison on Friday.

Charles Kyalo, the 45th prosecution witness, claimed that in 2010, Mbuthia and Ali Mohamed (Mustafa) inspected and rented accommodation at Kaigokem apartments in Kawangare, Nairobi.

After some time, Mbuthia reportedly came with the keys to the apartment and collected Mohamed Ali's property and left the keys with him. Also the prosecution's 59th witness, a Kenyan police detective, testified that Ali Mohamed's wife Amina Shamsi told police that her husband had introduced Mbuthia as someone to contact in case of "any problem."

That Amina revealed Mbuthia's contact to be phone number +254737367444. According to the witness, upon analysis of the call data record (CDR) for Mbuthia's number, it showed that it communicated with Ali Mohmed's number 25473485079 between August 4, 2010 and August 12, 2010 using short messaging service, SMS.

In his unsworn testimony, Mbuthia made a blanket denial of participating in the Kampala bombings. Though he admitted knowing Habib Suleiman Njoroge who has been sentenced to life imprisonment and Hijjar Selemani Nyamandondo who was sentenced to 50 years in prison as his brothers, he denied knowing Ali Mohamed.

He also denied collecting Ali Mohamed's property in the house he vacated. In his ruling, Justice Owiny-Dollo first rubbished Mbuthia's defence as lies. He said he believed prosecution on the introduction to the wife and SMS telephone communication.

"I'm fully convinced by prosecution evidence that accused six accompanied accused eleven [Mohamed Ali Mohamed] in the search for an apartment at the Kaigokem apartments; and later when accused 11 prematurely-terminated the tenancy, he [Mbuthia] returned the keys for the apartment and collected the cheque for the balance of the rent on behalf of accused 11," he ruled.

But the judge said the above evidence was not enough to link Mbuthia to the Kampala bombings. Prosecution, the judge suggested, needed some other compelling "independent" evidence to get Mbuthia convicted.

"Furthermore, accused eleven could have been engaged in some other criminal activity, which accused 6 [Mbuthia] was aware of, but different from his participation in the execution of the Kampala bombings, which accused six might not have known of. Even if he knew of accused 11's activities regarding the Kampala bombings, he might have been either just sympathetic to, or unconcerned with it," Justice Owiny-Dollo ruled.

OMAR AWADH OMAR

The acquittal of the heavily-bearded Awadh hurt prosecutors most since they claimed he funded the whole operation.

Prosecution had alleged during trial that one Omar Aziz Omar, based in London, wired an equivalent of Shs 138.8m to Awadh in Kenya through the Qarani forex bureau. And the judge agreed prosecution had a fairly-strong case against Awadh.

Through Kenyan police officer Paul Maingo, prosecution alleged that in 2009 Awadh was involved in recruiting for al-Shabaab as well as financing and coordinating their activities.

Maingo claimed that after putting Awadh under surveillance in 2010, police searched his home and recovered military items such as uniforms, sleeping bags, boots and ten Kenyan passports bearing different names. Maingo revealed that after interrogation, Awadh was released without charge.

In his ruling, the judge wondered why despite the above evidence, Awadh was not charged.

"There is the real possibility that indeed accused eight 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, might have been meant for operations in Somalia ."

The judge said Awadh may have had nothing to do with the Kampala bombings.

"... Prosecution witness 1 [Mahmoud Mugisha] and prosecution witness two [Edris Nsubuga] who testified that a group of visitors came to Uganda for surveillance and coordination of the mission, [did not] name him [Awadh] 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," the judge said.

MOHAMED HAMID SULEIMAN

The state had claimed that Hamid once used phone number 254722366634 to collect money from Qarani Forex bureau, on behalf of his close friend Awadh, who was using phone number 254727555555.

Accordingly, the CDR, for Hamid's number showed that he had communicated with Awadh 122 times from the year 2009 to 2010. Furthermore, the CDR indicated that Hamid exchanged text messages with convicts Edris Magondu, Hussein Hassan Agade and Habib Suleiman Njoroge.

In his unsworn defense, Hamid said Awadh was his colleague in a civil society organization known as Muslims' Human Rights Forum. He admitted knowing Magondu, as a driver at his children's school and Ali Mohamed as a security officer at the Saudi embassy. But he denied knowing Agade and Njoroge.

Justice Owiny-Dollo first agreed with prosecution - that Hamid knew both Agade and Njoroge because evidence showed he communicated with them frequently.

"I also agree with prosecution that accused 9 lied when he said that telephone number 254727555555 belonged to a Mombasa businessman [Omar Omar Salim] and yet it was recovered from accused eight [Omar Awadh Omar]."

But, the judge ruled, prosecutors needed stronger evidence than mere lies to convince court that Hamid was involved in the plot to bomb Kampala.

"The burden cannot be taken to have been discharged by the mere fact that this court has found accused nine to have been unreliable, or even that he indulged in deliberate falsehoods" Justice Owiny-Dollo said.

"The prosecution has, I'm afraid, failed to discharge this burden in a manner required by law; namely by adducing evidence proving beyond reasonable doubt that accused nine is guilty of the offence with which he has been charged."

ABUBAKARI BATEMYETTO

Kenyan police officer Martin Otieno had told court that on arresting Isa Luyima, the mastermind of the attacks, he revealed that Batemyetto was his accomplice.

Otieno said that when they arrested Batemyetto, a mechanic based in Mombasa, they found him with phone number 254723457803. He said Batemyetto's number had roamed in Uganda between May 1, 2010 and July 8, 2010.

Otieno also said that Batemyetto's number shared a phone set, which had also been used by Agade's phone number 254715855449 and Isa's phone number +254719706497.

Another police officer, David Kitongo, testified that Batemyetto had left Uganda for Kenya through the Malaba border point on July 12, 2010. In his unsworn testimony, Batemyetto denied participating or knowing about the attack.

He said he came to Uganda on June 18, 2010 and went back to Kenya on July 12, 2010. He said it was a routine trip and he had come to get a housemaid for Isa.

Though there was evidence that Batemyetto had shared a phone set with Agade and Isa when they were in Uganda, the judge observed that, that alone is not sufficient to prove that he was an accomplice in the attack.

"For a crime of the gravity, which terrorism is, I think prosecution needed to provide more concrete evidence, direct or circumstantial, that indeed accused 5 [Batemyetto] was a participant in the execution of the Kampala bombing mission; in order to pass the test for proof beyond reasonable doubt," he ruled.

DR ISMAIL KALULE

Charged with terrorism and aiding and abetting terrorism, Dr Kalule was implicated by two self-confessed conspirators-turned-state-witnesses, Mugisha and Nsubuga.

Nsubuga testified that at the end of July 2010, Isa sent him to Kalule at Alidina mosque in Kampala Central to inquire about a patient. That Kalule was happy to see Nsubuga.

And told him that when he heard that Issa Senkumba had been arrested, he feared that it was Isa [Luyima] but he later calmed down when he learnt that he wasn't the one. Nsubuga claimed that Kalule confided in him that Isa and Mugisha operated together as al-Shabaab agents.

Nsubuga claimed that Kalule told him that he had hatched a plan to see that Mugisha who was in jail on charges of forging a Ugandan passport gets bail. Mugisha, who was the first prosecution witness, said that Kalule's clinic was used as the "contact place" for the masterminds of the plot since they never used phones.

Kalule, in his defense, denied dealing with Isa and Nsubuga but admitted treating Mugisha at his clinic for ulcers. Kalule also denied arranging Mugisha's bail at the Nakawa magistrate's court.

From the prosecution evidence, Justice Owiny-Dollo said he was unable to discern any link between Kalule and the Kampala bombings.

"His [Kalule] knowledge of accused [number three Luyima ] and prosecution witness two [Nsubuga], and his fears of the arrest of accused [number three] doesn't make him a participant in the Kampala bombings," the humorous judge said.

"Equally, his involvement in securing bail for prosecution witness one [Mugisha], which I believe he did despite his denial, was with regard to the offence of being in possession of an illegal Ugandan passport; not over the charge of terrorism. An intervention, 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."

Source: The Observer

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