Jamil Mukulu case: Uganda’s trial of the century

Saturday May 19 2018

Held. Jamil Mukulu arrives at the High Court in

Held. Jamil Mukulu arrives at the High Court in Kampala for trial in handcuffs and chained legs. PHOTO BY ABUBAKER LUBOWA 

By IVAN OKUDA

Kampala.

Jamil Mukulu has moved from the sprawling jungles of the DR Congo to a subdued jailbird under watch by men armed to the teeth, before three judges clad in colonial wigs and robes, prying journalists randomly clicking cameras and lawyers pitting wits against one another’s.
The bizarre story of a man who parachuted himself to infamy decades ago is now in its crescendo, in an imperfect fulfillment of playwright William Shakespeare’s philosophical writing on the motions of life in the play, ‘As You Like It’ wherein he opines, “All the world is a stage, and all men and women are merely players.”
Was Mukulu, whose trial kicked off this week, only assigned the powers that be hither and tither, a rather daunting role to play in the theatre that is life? If so, that role is now playing out in the High Court where the fate of a man whose name has been attached to some of the most heinous crimes ever committed since 1894 when the geographical expression called Uganda came to be.
What are the stakes and the place of this trial in the growth and development of the country and the rest of the world’s jurisprudence on terrorism? What is the relation of the trial to the country’s and region’s politics, crime and the global conversation on terrorism?
So many questions; very few answers. But what is clear is that the panel of three judges led by Mr Moses Mukiibi, the head of the International Crimes Division of the High Court, have their work cut out. The other judges are Suzan Okalany and Michael Elubu.

The panel
Ms Okalany recently had a sampler of what is involved in such cases, as she was lead prosecutor after the murder of Joan Kagezi, in the case of the 2010 Kampala twin bombing suspects.
She would later be recognised in China as ‘Prosecutor of the Year’ owing to her role in one of the most complex terrorism cases on the continent because of its cross-border and international appeal.
The case involved gathering and piecing up evidence, assembling witnesses and experts across jurisdictions. As a judge fresh from a prosecution background, Ms Okalany’s assessment of the evidence, facts and issues before her could easily be marinated by her appreciation of criminal justice from the lens of her former docket in the DPP’s office.

Mr Moses Mukiibi
Mr Mukiibi, the head of the panel, literally needs no white-ish wig because his grey hair looks almost exactly like it, perhaps a sign that he was born for the Bench. He has been a judge of the High Court since the mid-1990s and some will say he has continually been passed over for promotion to the higher courts.
He was most in the public domain when in 2010 he ruled that the prosecution had failed to present a plausible case against Kato Kajubi, who was accused of procuring the sacrifice of a minor. Mr Mukiibi ruled that Mr Kajubi had no case to answer, touching off public outcry. Evidence was pieced together afresh and a retrial was assembled, which resulted in the conviction and sentencing of Kajubi to life in jail.
Approaching his last year before retirement, this will perhaps be the highest profile case Justice Mukiibi, who was only recently assigned the docket of the International Division of the High Court, will ever preside over.

Mr Michael Elubu
The third judge, Mr Elubu, was appointed to the High Court in 2013 and little is known about him.
At the start of the week, Mr Mukulu and a host of other co-accused were produced at the High Court, a spitting distance away from the Central Police Station in the heart of the city. That was by design, not default.
Ordinarily, the trial should have taken place at the War Crimes Division of the High Court in Kololo. A meeting of security chiefs, credible sources who sat in the same told this reporter, resolved that the trial take place at the High Court building in town, where there are holding cells constructed in the colonial era with the touch of architectural finesse suited for hyper sensitive security circumstances.
He was also produced in court in handcuffs and chained legs, a first in Uganda’s criminal justice history where accused persons usually get a semblance of freedom in the hallowed temples of justice.
Sources in security say the cost and risk of moving Mukulu even an inch from his cell in the tightly guarded Maximum Security Prison in Luzira is so high that it leaves the authorities on tenterhooks from the point he is led to the maroon bus to the time he returns to solitary confinement, where a prison warder presses the lock. An eye and ear is kept on him using technology on a 24-hour basis. Attention to every detail par excellence. Nothing is left to chance.
The world is abreast with extraordinary tales of men like Joaquín Archivaldo Guzmán Loera, a Mexican drug lord, who headed the Sinaloa Cartel. This was a criminal organisation named after the Mexican Pacific coast state of Sinaloa where it was formed. Loera used avant-garde methods to reclaim his freedom, including digging underground tunnels tens of kilometers long in high security prisons under the watch of American and Mexican security.
Luzira prison has also witnessed a gory history where a critical suspect in the murder of lawyer Sarah Kiyingi, wife of Australia-based doctor Aggrey Kiyingi, died under unclear circumstances in 2005 inside a cell. The death of Pte John Atwine, 25-years-old at the time, a UPDF soldier attached to the 115 Battalion in Gulu and the one who reportedly pulled the trigger, has since shaped how the authorities deal with high profile inmates.

Tight security
The antennae are even on higher alert for Mukulu as Uganda Prisons Service and sister security agencies are not taking chances and are treating him as not only a high value inmate, but also a serious security concern. The paranoia, or better still caution, has since crept its way to the Judiciary, with judges watching their backs and security being beefed up.
This, by any standard, is no ordinary trial. It is a trial of a lifetime. Elsewhere, they refer to it as “trial of the century’, like the case was with the O J Simpson double murder trial in the US.
Mukulu’s trial, given the gravity of allegations against him and the profile of the suspect, is perhaps bigger. Rebel leaders of his ilk hardly end up in court. Joseph Kony, for instance, has eluded arrest for decades, and when Angola’s Jonas Savimbi was about to be captured, he took his own life.
In high level security meetings that President Museveni has chaired, our sources say, the commander in chief put it to his security chiefs that he had reliable intelligence that Mukulu was conducting operations from prison, keeping telephonic contact with the outside world and had infiltrated sections of security.
Whether to stop visitors from seeing him became the issue in the meeting. The president was bewildered that the alleged warlord had access to a telephone when he hosted visitors but was reminded this is normal operating procedure.
The Allied Democratic Forces (ADF) rebel leader now lives in a cell where his every spoken communication is intercepted by security with bugs (hearing devices) planted in his holding cell, with the authorities listening in real time to conversations, including with his lawyer and family. In short, Mukulu is a naked man whose every layer of skin is penetrated by Ugandan and international security operatives keen to collate and analyse what moves beneath his skin.

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Lawyer protests
When his lawyer Caleb Alaka protested his client’s being shackled during a court session, Justice Eva Luswata, who presided over the pre-trial session, didn’t butt an eyelid. The rules of this specialised court require a suspect to go through a pre-trial session with prosecution adducing evidence to prove whether there is a prima-facie (case to answer) established against them or not. If a prima-facie case is established against the suspect, a panel of three justices has to be set up to hear the case on its merits until final judgment is delivered.
Uganda Law Society and human rights defenders have since frowned at the act of chaining the accused inside court, but the judges and security officers assigned to distill him through the processes of justice are aloof to the concerns. Thus is a glimpse of the caliber of the man on trial, the value security attached to his potential to cause chaos, and the associated risks of his presence in any of the justice, law and order institutions, contravening without bother of public perception, conventional rules of the game.

Elusive Mukulu
Mukulu is said to have used more than eight pseudonyms with the same number of passports to evade Interpol arrest warrants issued against him about a decade ago, including aliases like Jamil Alirabaki, Mazengo David Amos, Lwanga Thomas Musisi, Nicholas Lumu, Philipp Nyanzi, Yafesi, Abdullah Jjungu, Petanguli Kalemire and Denis Kityo Musoke.
Mr Peter Walubiri, who argued the case in the Constitutional court for the 2010 Kampala bombing suspects, opines that Mukulu’s trial will give the country insight into his alleged operations with ADF and break down the anatomy of the rebel outfit.
Mr Walubiri says: “It will be interesting to see what evidence the state has against him. Who is this Mukulu? Who finances ADF? Is he an international terrorist or local criminal? His prosecution will show the effectiveness of regional mechanisms to counter terrorism right from apprehension of suspects to trial and respect of their rights.”
Above all, it is a litmus test for the independence of the Judiciary considering that sections of the public have already condemned him as guilty, resuscitating the age-old debate on the impact of the media and public opinion on judicial independence.
Mr Walubiri wonders if the Judiciary can rise above the public perceptions in the court of public opinion and ideally follow the letter and spirit of their oaths, executing their duties regardless of newspaper editorials, threats and public sentiment.
The ideal judge, in the words of Sir Anthony Mason in the paper, The Courts and Public Opinion, “Must follow his conscience, whether or not he counters the manifest wishes of those he serves; whether or not his decision seems a surrender to the prevalent demands.”

Guilty of everything?

Different view. Mukulu’s defence is in a context of a country where security agencies usually blame every mischief – from killing sheiks to kidnaps – on ADF. Uganda is also seeking to take a seat at the global table of anti-terrorism voices championed by allies like US, UK and Israel. Their take on the course of events too, cannot be ignored.
But when one descends from utopia to reality, the words of Sir Mason ring true: “It follows that the judge does not turn a blind eye to the world outside the courtroom. The judge is part of that world; the litigants and the witnesses are part of that world and in the transactions and events to which the court case relates were part of that world. So, the judge, in evaluating the truth and the reliability of the witnesses, and in deciding the case, draws on knowledge of the outside world.”
The witnesses. In assessing the explanations given by a witness for what he did or said on a particular occasion, the judge will bring to bear his knowledge of people, how they behave, how they respond or are likely to respond to particular situations. The judge’s knowledge of the world, perhaps more than anything else, perhaps more than any impression formed from the witness’ appearance in the witness box, assists the judge in deciding whether the events which the witness claimed to happen are likely to have happened.
Public influence. The case of Sheikh Yunus Kamoga and his co-accused, who were found innocent on the charge of murder of Muslim clerics and on the same set of facts found guilty of terrorism, some legal analysts opine, is evidence of how much the courts are amenable to the inner voice that rings in the judicial mind, often drummed by public sentiment and prejudice, but above all the mechanics of state architecture and the dynamics of global terrorism.
Tight spot. The judges, therefore, will in the next so many months walk on a slippery path, especially considering that Mukulu as was with the 2010 bombing suspects, is defending himself against crime allegations that have a regional footprint and an international eye. Big Sam is watching. Closely.
It is also a time for the state to put to rest incessant claims that ADF is responsible for the many incidents of bloodshed in the country that have now become the standard explanation for shootings, and recently, kidnaps in the city.
Implications. The state could also be left looking ugly as it was with the Kamoga case where men and women accused of, and therefore the comfortable explanation to the killing of Muslim clerics, after years of torture in police detention and assurance to the public that the killers were in the bag, are found innocent.
How, for instance, does the state explain incidents in our blood-coated history where Mukulu’s ADF was blamed or claimed to have taken credit, are not part of the cocktail of allegations he has to respond to?
Trials like these put the state in an uncomfortable position where its own fault lines are exposed.
For a country with one of the world’s youngest populations, majority of whom are in their teens, early 20s and 30s, Mukulu’s trial might as well be treated with aloofness as the historical connection to the agony of yesteryears is absent. But for families and victims of his group’s alleged atrocities, the long arm of the law finally has him in its grip.
All eyes watching. The trial leaves ADF is an interesting space to watch. Mukulu will in his heart of hearts be following every proceeding with anxiety as will the global audience such as US and UN, which are keen on countering terrorism in the region.
When all is said and done, as Shakespeare put it, the world is all but a stage. How Mukulu acts this particular episode has far-reaching implications to himself, regional efforts in the fight against terrorism and the development of jurisprudence in Uganda and the Commonwealth. The victims of ADF’s alleged atrocities will be staring at the heavenly skies for a signal, a symbol of justice at long last, if at all.

Mukulu’s criminal history, according to govt

1991. Attacking Uganda Muslim Supreme Council
1992-1994. Commanding an insurgent group in Buseruka-Hoima, which killed policemen, took their guns, looted people’s property and established an illegal military training camp.
1996. Attacking on Mpondwe and Bwera.
1997. Attacking on Kichwamba, Kiburara, Kotojo prisons, Kyondo village and Kilembe and abducting people.
1998-2001. Commanding terrorist attacks in urban centres, especially Jinja, Kampala and on highways where lives were lost and others got injured. Notable bomb attacks were at Nile Grill, Slow Boat, Nakulabye, Fairway Hotel, Ben Kiwanuka Street, Kabaka-Njagala, Makindye Isabella Pub, Queen Tower Kabalagala, Valentine’s Day attacks, and improvisedexplosive devices detonation in commuter vehicles.

Wanted in Congo

Extradition to Uganda. In June 2015, a Tanzanian court gave the green light for the extradition of Mukulu to face trial in Uganda for allegedly ordering a spate of deadly attacks against civilians since the 1990s, with Magistrate Cyprian Mkeha ruling that he was satisfied the fugitive rebel leader would face a fair trial for charges of murder, terrorism and treason in his motherland.
This was after Tanzanian police brought to a blissful end the manhunt for a man the United Nations said is “one of the region’s most brutal warlords” when he was arrested in April 2015 in Dar-es-Salaam.
Forming rebel group. Mr Mukulu, a former Roman Catholic who converted to Islam, founded the Allied Democratic Forces (ADF) in the 1990s ostensibly to resist Mr Museveni’s regime, setting base in eastern DR Congo.
DR Congo’s Justice and Human Rights minister Alexis Thambwe Mwamba told international media at the time that Mukulu had committed more killings in DR Congo than in Uganda, and that his country was baying for his blood, so Uganda had better surrender him to face trial there.

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