No trial for rearrested bombing suspects a year after acquittal

Kampala.

A year after they were acquitted of any involvement in the July 2010 Kampala City twin bombings, five of the men rearrested remain in prison with no trial set for their “new” crimes.

Dr Ismail Kalule and Abubakari Batemyetto (Ugandans), Omar Awadh Omar, Yahya Suleiman Mbuthia, and Mohamed Hamid Suleiman (Kenyans) were part of 13 people charged with being behind the 2010 bombings in Kampala.

On May 27, 2016, High Court judge Alfonse Owiny-Dollo sentenced Hassan Luyima, and Suleiman Hajjir Nyamandondo to 50-year jail terms for masterminding the attacks which occurred as fans watched on giant screens the football World Cup final match between the Netherlands and Spain, hosted in South Africa.

Five other co-accused Ahmed Luyima, Hussein Hassan Agad (alias Hussein Agade), Idris Magondu (alias Christopher Magondu), Habib Suleiman Njoroge and Muhammed Ali Muhamed were given life sentences. They were all convicted of terrorism, murder and attempted murder.

Muzafaru Luyima was convicted of being an accessory and was sentenced to one year of community service.
The five rearrested men were acquitted after the prosecution failed to prove that they were involved in the attacks that left at least 76 fans dead and scores of others injured.

“I find that Abubakari Batemyetto (A5), Yahya Suleiman Mbuthia (A6), Omar Awadh Omar (A8), Mohamed Hamid Suleiman (A9), and Dr Ismail Kalule (A12), are each not guilty of the offences of terrorism, murder, and attempted murder, with which they have been indicted. Similarly, I find Dr Ismail Kalule (A12), not guilty of the offence of aiding and abetting the offence of terrorism with which he was charged. Accordingly, I set each of them free forthwith; unless they are being held for some lawful purpose,” Justice Owiny-Dollo ruled.

In acquitting Dr Kalule of terrorism charges, Judge Owiny-Dollo found that his only crime was to stand surety for one of the prosecution witnesses.

“This [standing surety] is not an offence under the Antiterrorism Act. I have already pointed out, herein above, that standing surety for an accused, or providing funds for the accused’s bail, is not an offence as it is provided for under the Constitution,” Justice Owiny-Dollo ruled.

The judge explained that he was “unable to see how money, which is deposited with the State, as bail money, could be said to either aid, abet, or finance the commission of the offence of terrorism; or that in providing the funds, one would be harbouring or rendering support for the commission of the offence of terrorism or any other”.

Despite Judge Owiny-Dollo’s ruling, the five were immediately rearrested upon release from Luzira prison.

As relatives and friends of the five, who had been incarcerated for more than five years waited for them to return, police in the hours following their acquittal claimed they were holding the five for their safety over fear that they might be killed by members of the public dissatisfied with the court ruling.
But four days later, on June 1, 2016, the five were charged again over what police said were fresh allegations of terrorism and related conspiracies at the Chief Magistrates Court, in Jinja District.

The rearrest by police and other security agencies of suspects freed by court is not new. In November 2010, court acquitted 18 suspects of charges of taking part in the same twin bombings after prosecutors told the court that their investigations had concluded the suspects were not involved in the attacks.

But three of the acquitted suspects: Christopher Baturaine, Issa Ali Senkumba, and Abdulahi Muhamed, were immediately rearrested and driven off to an undisclosed location.
On January 12, police operatives travelling in a vehicle, registration number UAZ 992M, stormed the premises of the Gulu High Court and rearrested suspects that had been released, including Dan Oola Odiya, the Uganda Peoples Congress (UPC) national deputy mobiliser.

The suspects were driven from Gulu before being split up. Mr Odiya was detained at Nalufenya in Jinja, while his co-accused, Mr Kenneth Otto, and Mr Sam Ojok Obama, were detained at the Special Investigations Unit (SIU) in Kireka, near Kampala.

The trio had been facing charges, including treason, murder by shooting and attempted murder.

In 2005 and later in 2007, the infamous Black Mamba raided the High Court in Kampala to rearrest men accused of being members of a shadowy rebel group, Peoples Redemption Army (PRA). The very existence of the rebel group has always been questioned.
The suspects had been released on bail 15 months after they had been charged with treason.

The charges were linked to those that had been brought against rtd Col Dr Kizza Besigye, the then president of the opposition Forum for Democratic Change (FDC), who had been charged in November 2005 with attempting to overthrow the government by use of arms. It had been alleged that Dr Besigye had carried out recruitment of rebels in Arua, Yumbe and Nebbi districts.

The New York-based Human Rights Watch (HRW) has in the past
described moves to immediately rearrest suspects that have been released after due process of court as a “blatant disregard for the independence of the Judiciary”.

Mr Caleb Alaka, one of the lawyers representing the five, says during the course of the trial in which they were acquitted, they gave their clients some of the disclosures from the prosecution to read and discuss with the lawyers later.

But the Luzira Prison authorities carried out a search in one of the cells and are reported to have seized the disclosures.
In a statement confirming the rearrest of the five, Mr Fred Enanga, the then police spokesperson, said: “A re-investigation began immediately after hand-written documents and related materials asking members to conduct hostile reconnaissance around security facilities and other vital installations, in preparation for violence, were seized and fresh evidence of the new plot that connected the suspects to the materials, recovered.”

After they were charged in court, the suspects were allegedly tortured and detained at the now infamous Nalufenya for about six months until their (lawyers) successfully applied for their return to Luzira Prison where they remain incarcerated.
“It is the most unfortunate thing with our legal rights, the formal abuse not only of the legal process but of human rights,” Mr Alaka said in an interview.

He said as lawyers, they piled pressure on the prosecution and the suspects were committed to the International Crimes Division (ICD), a special division of the High Court with jurisdiction to try those accused of war crimes and crimes against humanity, as well as transnational crimes, including piracy, trafficking and terrorism. The trial is yet to commence.

“We have been pressurising the State that if there is any evidence against these people, let the trial begin. It is the worst form of human rights abuse, if the people in the DPP’s office and the police, if what they were doing to these people who were acquitted by [Judge] Owiny Dollo was being done to their relatives, I think they would have understood what it means. It is so terrible,” Mr Alaka said.

“There is no justice in Uganda, people abuse their powers, and the Constitution is flouted. Under Article 120, the DPP is supposed to be independent, but I want to tell you on the case of Dr Kalule and others, that the independence of the DPP was compromised. I don’t know for what reason,” he added.

Some people such as members of CAGE Africa, a branch of CAGE UK, an advocacy organisation that works to end abuses meted out by states as part of the global “War on Terror” allege there is a conspiracy that goes beyond the borders of Uganda.
The group has been supporting the Omar family and working as their spokespersons.The CAGE members accuse the British and American intelligence of complicity in ensuring that the suspects never leave prison to testify on their alleged human rights violations.

“There are still serious questions surrounding allegations of British and American complicity in torture in Omar’s case, and Omar holds crucial evidence in connection with this. One cannot outlaw the very real possibility that his rearrest and arbitrary detention is being orchestrated from organs outside the Ugandan government,” Feroze Boda, a CAGE Africa member, said in an email to Saturday Monitor.

The group insists that Mr Omar and others should immediately be released.

“The rearrest and charging of persons immediately after being acquitted is nothing less than serial incarceration – a strategy to continue keeping innocent people in custody notwithstanding their acquittal, under the pretext that they are facing fresh or new charges. Being imprisoned like this for a year without charge, with no end in sight is a form of torture and a violation of international law,” he added.

In 2011, Mr Omar brought a case against the British government in which he placed a British intelligence officer and the US’s Federal Bureau of Investigations (FBI) officers at the scene of his alleged torture in Uganda after being extradited from neighbouring Kenya.

The UK-based Guardian newspaper reported that the Americans and their British counterparts who identified themselves “punched, slapped, threatened and sexually humiliated Awadh [Omar] while questioning him about alleged connections with Islamist militants” among other things.

Ms Jane Okuo Kajuga, the spokesperson of the DPP’s office, sought to absolve it of any complicity in keeping the acquitted men behind bars. In an interview, she said the problem was with the courts because prosecution is ready to present their case against the five.

“We charged them because we believe we have evidence. Once we have charged, we leave the matter to court to set a date for hearing,” she said.

She added that the suspects were charged on a separate count of terrorism, which is a “different matter” and has “nothing totally to do with” the charges they were earlier acquitted of.
A senior communication officer of the Judiciary, Mr Solomon Muyita, said the ICD court, like the other divisions of the High Court, cannot perform properly because of understaffing.

“That court (International Crimes Division) has five justices and it sits in panels of three. Out of the five, two have retired and the leadership of the court has written to the Judicial Service Commission to hire the judges on contract, but we are yet to hear from them,” he said.

Even if the judges are appointed, it might take years before the five men go on trial. “All these cases are handled on a first in, first out. The cases first committed to the court are ordinarily handled first unless there is demonstrable urgency,” he said.