Terror: Rule of law can provide satisfactory results

The case in which seven Kenyans have been on trial for the Kampala bombings in 2010 came to an end last week, with the High Court of Uganda finding seven of the 13 suspects guilty of terrorism, murder and attempted murder, while it acquitted the rest.

Those that were convicted included three Kenyan nationals – Hussein Hassan Agade, Edris Christopher Magondu and Habib Suleiman Njoroge.

The other convicted persons were Ugandan brothers Isa Ahmed Luyima, Hassan Haruna Luyima and Muzafar Luyima, the first two as the masterminds of the terrorist attack and the last one for aiding them to escape justice after they had conducted the attack.

Five of the accused including the Kenyan nationals Yahya Suleiman Mbuthia, Omar Awadh Omar, Mohamed Hamid Suleiman, were acquitted of all the three offences - the judge finding that the prosecution had not adduced sufficient evidence proving their participation in any way with regard to the bombings. 

The terrorist attacks were committed at the Ethiopian Village Restaurant and Kyadondo Rugby Club, where the IEDs were detonated.

A total of 76 people died as a result of the attacks and scores were injured. There would have been more fatalities if IEDs planted at a third target, Makindiye House, had detonated.

Some 82 prosecution witnesses and 13 defence witnesses testified in the hearing presided over by Judge Alphonse Owiny Dollo, who examined the primary evidence adduced by the prosecution - which included related visits to Somalia and linkages to Al-Shabaab, telephone call data records and telephone geo-location linking the accused to each other as having been in communication prior to the attacks, and the sharing of handsets that were linked to preparations for the terrorist attacks.

The judge also applied the doctrine of common intention and found the accused had acted in concert with each performing a crucial role in the attack, concluding that it did not matter that all of them had never met each other.

The conviction of several of the accused persons in what looks like a carefully considered decision by a judge who enjoys a good reputation, would seem to be a vindication of the efforts that the Ugandan government, working with its Kenyan counterpart, has put in this case.

UNLAWFUL MEANS
It is also a tribute to the first prosecutor of the case, the late Joan Kagezi, who was assassinated in the middle of the trial, a crime which has never been explained, and to which the trial judge referred at length in his judgment.

The partial convictions serve to pass the message that due process, as evidenced by criminal trials, can be an effective way of dealing with terrorism and that governments do not have to resort to the high-handed tactics, including extrajudicial killings, which often characterise their approaches to countering terrorism.

The convictions in Uganda, however, do not mask the difficulties that this case has faced. To begin with, the Kenyan nationals were abducted and taken to Uganda yet they could have been lawfully transferred though extradition.

If the Ugandan Court of Appeal, to which complaints about this method of transfer of the Kenyans was made, had found the courage to do so, it would have dismissed this case before trial.

The questionable method used to get the Kenyans on trial in the case robs the successful prosecution of the unqualified commendation, which it would otherwise have enjoyed.

Secondly, there has been a delay of six years since the case began. For a criminal trial in which the accused were in custody, this is a long time.

Although Kenyan organisations, led by the International Commission of Jurists, repeatedly took up the matter with the leadership of the Ugandan judiciary, these delays were never addressed.

Thirdly, the Uganda government erected a firewall against Kenyan nationals who attempted to assist their compatriots arrested in Uganda.

It is in this context that lawyer Mbugua Mureithi was arrested together with Al Amin Kimathi, when they visited Uganda to arrange the defence of the accused Kenyans.

On a different occasion, another Kenyan lawyer, Sam Mohochi, was also arrested and returned to Kenya when he travelled to Uganda for the same mission.

Later, the East African Court of Justice declared that his arrest and repatriation to Kenya was a contravention of the charter of the East African Community.

The bizarre manner in which those acquitted have been dealt with is also disturbing.

Justice Owiny Dollo was clear in his judgment that those he had acquitted must be released forthwith unless there were lawful reasons to keep them in custody.

THE LEGAL WAY
The latest reports indicate that those acquitted were released in Kampala before they were re-arrested immediately, allegedly for being in Uganda illegally, and then transferred to a location in Jinja where they are currently held.

It is difficult to understand this method of dealing with the liberty of people.

If the governments of Kenya and Uganda made the rare choice of dealing with this case according to the rule of law, they must stick to that method and release the acquitted persons.

The Kenyan civil society united behind demands for justice for the Kenyan nationals who were on trial in this case, some of whom have now been found guilty.

The point of principle is that all persons who are suspected of crimes, including those that may have committed crimes, must have their day in court.

This is the principle that the Kenyan civil society sought to uphold.

With all their imperfections, the trials in Uganda signal that the rule of law can be provide satisfactory results in addressing terrorism.

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