[1994] UGSC 19


(CORAM: MANYINDO, D. S. J., ODOKI, J. S. C., & PLATT, J. S. C.)

CRIMINAL APPEAL NO. 13/93

## BETWEEN

ALI FADHUL ::::::::::::::::::::::::::::::::::::

## A N D

UGANDA ::::::::::::::::::::::::::::::::::: RESPONDENT

> (Appeal from the decision of the High Court in Mbarara (Hon. A. N. Karokora) dated 11th June $1993$ .

> > IN

## HIGH COURT CRIMINAL SESSION NO. 35/1987

## JUDGMENT OF THE COURT

The Appellant was a person of some responsibility in times past. In September, 1972 he was the Commanding Officer of the Simba Battalion at Mbarara. When Uganda Exiles from Tanzania entered Uganda from the area around Kikagati, the Appellant was put in-charge of the defence of that part of Uganda's Southern border. The High Command, however, nursed suspicions that some Ugandans were in league with the enemy, and it appears that orders had been given that those who were supporting the guerillas should be killed like them.

In those circumstances, it is alleged that Tibayungwa was considered ^a collaborator, and the issue for trial was whether the Appellant had killed him, or whether another officer had done so, while the Appellant was at Kikagati. Both the Appellant and the other officer, had allegedly employed soldiers under their command to bayonet Tibayungwa as he lay on the ground at the Barracks•

The witnesses for the Prosecution narrated four episodes in the story leading to the death of Tibayungwa.

Leo Kabukira (PW,2) had been the Gombolola Chief at Kikagati, and on 17th September, 1972, while he was at Gombolola headquarters, guerillas invaded Uganda from Tanzania, As all his colleagues ran away, Leo sought permission from Lt, Oder, to leave his station. He locked up everything as advised, and leaving his address, he left for Kabuyunda, where he stayed with one Muganzizi. On 20th, 1972, Leo was fetched by some soldiers from the house of Muganzizi, and taken to the Appellant at Ntundu Army Camp, after Leo had visited Gombolola Headquarters, picking up some things and his cash box. The Appellant interrogated him, but finding cash and books in the cash box, directed that Leo keep the keys, having left the cash box at Ntundu and go back to where he had teen staying. The next day he was directed to return and take the cash back to Mbarara.

Leo explained that '.-he was well aware who the Appellant was, having seen him on five occasions previously.

The following day, that is the 21st September, 1972, Leo drove with the Appellant to Mbarara with the cash box, in the Appellant's Peugeot 50^-• & jeep full of soldiers followed. As they drew near to Mbarara, a white Peugeot ^0\*+ passed them. The Appellant rapidly turned rpund, They caught up with the Peugeot 4o\*+ which had parked near the gate of the Ministry of Works. The Appellant parked his car infront of the Peugeot ^z^f04 and the jeep parked behind.

The second episode now commenced® The Appellant got out of his vehicle, opened the door of the Peugeot ^0^, found Tibayungwa in it, and pulled him out. Tibayungwa put his hands up and asked what he had done, since he was returning from Army Barracks to report about the geurillas. The Appellant, according to Leo, replied that Uganda soldiers were dying and he was driving about and enjoying himself. Soldiers then joined the Appellant and jut Tibayungwa in the boot of the Peugeot 50^. Tibayungwa exclaimed "My Clod 2"

Tibayungwa was at that time the Administrative Secretary and the person in-charge of the Chiefs of Ankole and the Local Administration as a whole. But the Appellant was angry with aim. Leo stayed in the Peugeot 50^-. He could see behing what had happened, as the other car was close. Presumably the boot would have been raised which may have obstructed Leo's view to some extent. However people at the Ministry of Works gate came to see what had happened. The Appellant shouted at those who had gathered there to go back. But he ordered one of the Ministry of Works

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employees to drive the Peugeot 4o4 to Army Barracks, Mbarara, and that was the witness Robert Mande Karakuza (PW1)# He described what he saw, the Peugeot 404 arrived and parked followed ;by the Peugeot 504 and jeep# Tibayungwa put his hands up and said "My God!" He was put in the boot of the Appellant's car. The Appellant closed the boot, and drove away# Karakuza was only six paces away and aruw:<<what happened# He was then chosen to drive the Peugeot 404 to the Army Barracks.

The third episode occurred at the District. Commissioner's office, and that incident was narrared by Loe(PW2)# On arrival at this office, Leo got out of the vehicle, as well as the Appellant who opened the boot# The Appellant got out the cash box and handed it to Leo# The soldiers were told to guard the boot and if Tibayungwa tried to get out they should shoot him. Leo and the Appellant went to the District Commissioner's office, and found the District Commissioner Mr# Toskin there. The Appellant was very angry, and wept in the corner of the office complaining that some of the big officers of Ankole had turned into traitors, of whom Tibayungwa was one# The officers had collected money to send to Tanzania for the purpose of overthrowing the Government# The Appellant said he had just arrested Tibayungwa.

The Appellant explained that Leo was then to hand over revenue and the Treasurer was called from Kamukuzi. In the meantime Toskin and the Appellant went but to see Tibayungwa. Toskin returned confused# When the Treasurer arrived Leo was taken to Kamukuzi and did not witness what happened thereafter#

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- ⁴ -

Under cross-examination, Leo clearly asserted that he had indeed put the cash box in the boot, and when it was taken out he saw Tibayungwa trying to move to his side. He denied that he had been accused of being a collaborator with the guerillas, and that he had been taken to Mbarara to save him from the wrath of the soldiers.

Albert Kashako (PW4) confirmed what had happened in the District Commissioner's office and saw Tibayungwa in the boot of the Appellant's 50^ Peugeot. The Distric Commissioner wept when he saw Tibayungwa.

The last episode occurred in the Army Barracks at Mbarara.

Karakuza (PW1) did not drive to the District Commissioner's office. He was directed, by the soldier with him, to take a side road through Kusunguni village and so came to a rear gate. There were soldiers there who let the vehicle enter. After -chat he drove to the Quarter Guard. The entry had been possible because the chain-link fence was down and Karakuza drove over it. The soldiers with him took the ke?rs. He remained waiting for the next order, sitting on a cement wall.

At the quarter guard there were a heap of dead bodies which were feeing loaded &n to.a Police Lorry(Bedford by':make) by prisoners. While Karakuza was sitting there, he saw the Peugeot 504, driven by the Appellant, arriving, and it was parked some 10 paces away. The Appellant ordered -fohe soldiers to get that person out of the boot and finish him. The Appellant opened

the boot and soldiers came and took Tibayungwa from the boot. Tibayungwa was perhaps manhandled and then made to lie face downwards. The soldiers had fixed their bayonets and each of three soldiers stabbed Tibayungwa in the back of the chest. The Appellant watched this process from ⁴ paces away. Each time the body was stabbed blood gushed out. Tibayungwa said nothing. His tongue protruded out of his mou.th and his legs shivered and then the body lay still. Tibayungwa was dead and his body was fehen loaded on to the Police lorry.

The driver of the Police lorry, called William Bagwegiriira confirmed what Karakuzi had related. William and Karakuzi had known each other over repairing vehicles. They spoke to each other.

After Tibayungwa had died, one of the soldiers took his wrist watch, and shoes and; a notebook. Then the Body was loaded on to the lorry. William drove the lorry with the dead bodies to a large hole which served as a mass grave. They were covered with soil by a bull dozer.

Upon that evidence it was not possible for the Prosecution to arrange for ^a post mortem examination. But it was open to the trial Court, if it chose, to accept the evidence, to vnfer that the deceased had been stabbed to death. Indeed he has never been seen again since. It appears that the defence case accepted that the deceased had been killed, because the allegation was that another officer, not the Appellant, had ordered Tibayungwa to be stabbed.

......../?••

As against that evidence there is the defence. The Appellant in his unsworn statement explained the''course of the invassion and the defence that the Uganda Army had offered. He had been sent to «-ot»zaxid the Kaberebere to Kikagati sector. His second in command at Mbarara had the sector Kaberebere to Mbarara. He drove his own car on 17tln September, 1972 to get down to his area. It was at first calm, then when Mortars landed he moved to Ntundu Camp. While at the latter camp he sent for the Gombolola Chief of Kikagati. He was brought with his safe and the Appellant gave him an escort to the place where he was staying.

On 21st September, 1972 he received a message from the Commander-in-Chief requesting a report of what had happened. Each officer made his report, Major Gowan of Mbarara Reported the capture of Oyile and four civilians, one of whom was alleged to be Tibayungwa. The Commander-in--Chief ordered Oyile to be taken to Kampala to join Ojera and Ali Picho. Major Gowan was prdered to deal with the rest as guerillas were being treated. The Appellant was still in Kikagati.

On 22nd September, 1972 the Appellant was told to report to Mbarara, but he had no escort and he waited for a Presidential landrover escort. He reported that the would leave at 8,00 am 23rd September 1972. In the meantime, he sent for the Gombolola Chief and he came in the morning. The Appellant reminded the Chief that the mood in which he had answered the Appellant, that that was the day the Government would be overthrown, meant that he must be moved for his own safety. Intelligence suggusted that

he was a collaborator\* So he was taken to his superior, the District Commissioner. Oyile had not mentioned him; otherwise he would have been treated as a guerilla.

On 2Jrd September 19?2 the Appellant came back to Mbarara bringing with him "Leo Kab^kira." The safe was in the front seat with Lt. Ndaula. Ammunition and grenade box had been placed in the boot. There was no escorting jeep but a landrover and soldiers. He went to the District Commissioner's office and found him there. He handed over Leo to the District Commissiondr. The latter reported the arrest of Tibayungwa and his detention at Army Barracks. He took over the command of the Barracks at a parade.

At that time Field Engineers were laying mines inside and outside the barracks. He reported to District Commissioner that the four civilians arrested had been killed as any other guerillars. This was reported to' the President on 2^th September 1972.

The defence attacked the credibility of the witness Karakuza (PW1) particularly severely. His evidence it was claimed was so unreal and false that he could not have been there at all. William (PWA) might have had to do that work but he could not haVe been the Appellant. The later had no power to arrest anyone while the Barracks were under the command of Major Gowan.

Defence witness Matovu(DW2) explained the story that Tibayungwa had been brought in a red car and 'that the Captain of the Quarter Guard gave orders for Tibayungwa to be bayonetted to death. Whilst

this witness was there, loading bodies on the lorry, another vehicles came, bluish in colour with a man called Bitanako. The latter was the Saza-Chief of Isingiro. The order was given for him to be stabbed to death. The bodies were buried in Mass grave.

The witness Musa Manane(DWj) claimed to have laid land mines. There had been fighting on 17th September 1972. The perimeter was apparently not mined on that day as the enemy reached the fence and were shot as they climbed over it. The enemy was pushed away from the fence towards the forest. This witness was called back to go on laying mines inside-outside the fence. The Appellant came back on 23rd September 1972. The mines were removed on 25th September.

The witness Edirisa Mutagana(DW4) photographed guerillas and weaponry for show ^vⁿ televisiu'ⁱ on' 22hd September 1972. The Appellant returned on 23rd September 1972. These witnesses were admittedly close friends or acquaintance\* of the. Appallant.

Then the Prosecution was permitted to recall Karakuza to elucidate a point as to the difference between his evidence at the first trial and the re-trial. He did not say at first that he had gone through Kasanguni when driving Tibayungwa's car.

On 28th January 1993 at the end of his cross-examination the witness Karakuza noted:-

..../10.. "I think I never included Kizunguni in entering the Barracks in my statement."

$10$

Thereupon Mr. Kalule Luyombo, for the defence put in the recorded evidence from the first trial for identification. It was never proved. But the learned Judge allowed Karakuza to be recalled and the he related:-

> "In the earlier trial, I stated I drove straight to Army Barracks, but I was never asked which route I took to reach the Barracks ............ I did not take the shortest route as I was being directed which route I should take."

It may be that the direct route, did not include a visit to the District Commissioner's office.

Then the Prosecution applied to call rebutting evidence concerning the death of Bitanako. This was allowed and what transpired was that John Kaganzi (named as DW7) recalled reading an atticle in New Vision that Tibayungwa had been killed by a Captain, and that the county Chief of Isingiro Bitanako was also killed in the same manner. In fact Bitanako had been his fatherin-law - the witness had married his daughter in 1972. He had been made Chief in 1974 and had been arrested in 1976 and ther disappeared. In 1972 Bitanako was Market Master of Ankole Governo ment.

On this evidence, the first Assessor Mr. Lubega sided with the defence entirely. The second Assessor believed the Prosecution

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case and disbelieved the defence# That was the path' chosen by the learned Judge. In view of this situation, the Appellant is entitled on this first appeal to a re-appraisal of the evidence by this Court, having in mind the fact that the trial Court saw and heard the witnesses give evidence. Apart from this, the Appellant has raised certain matters of law which we should deal with at the outset.

The first such matter of law is whether the Judge was biased. Ground ¹ of the record of appeal alleged that this bias took three forms.

- 1. In refusing to disqualify himself from the conduct of the case. - 2. In the conduct of the trial. - 3. In the formation of his judgement.

Reliance was placed by Mr. Kalule Luyombo on Ojok vs Uganda (unreported but Criminal Appeal NO. 53 of 1991)\* This Coprt held that ''first, the real likelihood test should oe used to ascertain whether the judicial officer laboured under an interest, pecuniary proprietory or of kindred. Very often the judicial officer passes this test. The second test is then employed, to verify whether the legalities of the first test ';meet the expectations of reasonable right-minded people. If there is reasonable suspicion '.neither fanciful nor flimsy that the judicial officer may have been biased, we must then pass on to the second test. We must so administer justice as to satisfy reasonable persons that the Court was impartial and unbiased."

In this case, there was no evidence of an interest pecuniary, proprietory or of kindred. It was argued with some warmth, that as the learned Judge and Tibayungwa came from Ruhoro, the learned Judge was bound to be biased. The affidavits put before the Judge did not disclose a clan connec-There was certainly no close family connected, and so tion. far as the application to the Judge is concerned, there. is no distant relationship. The Judge explained that he would have disqualified himself where:-

> "parties victims or accused are friendly or related to me regardless of where the venue of the Court is."

There was no sound ground upon which to state that there would be bias in the Judge.

One must pass on to the objective test whether right-minded people would form the reasonable opinion that the Judge would be biased. There is again nothing on which to base any conclusion to that effect. The Judge did not know, and was not known to Tibayungwa; he was not present in Ruhoro when this incident took place; he lost nobody from this family at the behest of the Appellant; and so there is no ground upon which any person could conjure up reasons upon which to conclude that the Judge was biased in principle.

We have examined this aspect of the case in its widest sense, because the Learned Judge did not employ this principle. Even if he had, there was no basis in the affidavits upon which any bias could be suggested.

Yet Mr. Kalule Luyombo, offered the Court two further possible ways of measuring bias, collected from the conduct of the trial. One was that the Judge allowed evidence in rebuttal under section of the ^rial on Indictment Decree, 1971. When Matovu (DW2) gave evidence he alleged that after Tibayungwa had been killed, one Bitanako had been brought in a bluish car, and he suffered fohe same fate. As the fate of Bitanako had not been raised in any way during the Prosecution case, the learned Judge allowed John Kafeanzi(DW7) to be called. The latter proved to be the son-in\*-law of Bitanako, and who testified that Bitanako had been arrested and disappeared in 1976 not 1972. That was a significant retort to the defence.

Linking with the first point, was the fact that the defence alleged that the deceased Tibayungwa had been brought in a red car and then killed on the Captain's orders. Shortly afterwards Bitanako was brought and suffered the same fate. It was found that'the story of the red car .had not been put to the eye-witnesses Karakuza and William (PW1 and PWJ), and that therefore the prosecution evidence must be accepted. It is certainly clear that the story of the red car, and indeed that of the bluish car, was not put in cross-examination. That rendered the defence suspect and DW7 indeed confirmed the doubt.

Neither of these considerations showed bias. The Judge was correct on these matters. He was however wrong on one question of cross-examination. Leo had certainly been questioned on whether or not he had put the cash box in the boot of the Appellant's car,

at the beginning of the journey from the camp to the District Commissioner's office\* That misdirection standing alone would not suffice to indicate bias, and must be judged in relation to the evidence as a whole\*

The second allegation on the procedure adopted by the learned Judge, which the defence objected to was that Mr\* Kalule Luyombo had asked to put in the whole of the record of Karakuza's evidence at the first trial\* The point in issue was whether Karakuza haa allegedly driven direct to the Army Camp or whether he had been directed to drive via Kisunguni to the Camp. The tale that 'he had driven via Kisunguni came out in the second trial\* The Judge held, and rightly so, that the previous statement could be put in ^or cross-examination, but no other way. In the result, Karakuza accepted that he had not spoken of Kisunguni in the jfirat trial. His explanation was 'that he had not'-bean asked to explain the route. Direct probably meant that while the Appellant had stopped at the District Commissioner's office, Karakuza had driven on to the Army Barracks and took the route ordered by the soldier with him\* In view of the admission as to the difference inihe two statements, there was no need to admit the first statement. There is no indication of bias in this matter,

Mr. Kalule Luyombo thought that he had authority for the course proposed by him\* But when the decision was looked at in SAMBASIVAM VS PUBLIC PROSECUTOR, FEDERATION OF MALAYA (1950) A. C. 458, it was clear that the first statement could only be used for cross-examination. That answers ground 6\*

..•./15

There is then ground ⁵ which might relate to bias on the basis of ⁰ jok1s decision (above)#

When the matter was inquired into the learned Judge had not shifted the burden of proof to the Appellant. Nor had he merely convicted the Appellant on the weakness of the Appellant's case. It could be said that there were some errors of emphasis in the way the judgment was framed. We have said before, and we hope that we will not need to repeat it again, that no final acceptance of the evidence of a prooecution witness should be made until the end of the judgement when the evidence for both sides is being compared. What is needed in the case of an alibi defence, is not only to declare that the accused need not prove his defence, but that it is sufficient if it raises ^a doubt as to his presence at 'the scene. The learned Judge does not seem to have stressed this latter point. The accused is only placed at the scene when the evidence for the prosecution is evaluated, and compared with the defence. If then the defence raises no doubt, the prosecution case may be accepted that the accused was at the scene.

Looking at the record, the Judge having set out the evidence of both sides, then began to evaluate that evidence. Had the principles been more clearly borne in mind, the judgment would have been more easily understood^

Mr. Kalule Luyombo referred to the military aspect of the situation. It is difficult to understand what that could be if the Appellant had not been present at the scene. If it refers to carrying out the orders of the Commander-in-Chief, then if those orders are unlawful, there is no defence of respondent superior.

..../16

It is possible now to say that from the various attacks on the Judge personally and on his manner of work, there is no evidence of bias.

The other part of the Appeal concerns the discrepancies in the evidence. We have taken note of the opinion of the Assessor who disagreed with the Judge. Some of the many discrepancies he noted are more apparent than real. The learned Judge visited the scene and was satisfied that the witnesses could see and hear, what they testified they had seen and heard. He noted the areas of conflict and where their memories had somewhat faded with time. Nevertheless he found that Leo, Karakuza and William are substantially reliable. As against that, there is no doubt that the defence was of much less weight. If the rebutting evidence was accepted, then Matovu(DW21s) evidence was false in ^a very material point. Together with the lack of cross-examination as explained above the story that the Captain ordered the death of Tibayungwa must be **talo®.** That means that that part of the Appellant's defence concerning the report he received on returning to Mbarara must also be false. The Judge and the Assessor who

agreed with him, in our opinion, were entitled on the evidence, to find that the rest of the defence raised no reasonable doubt, that the prosecution witnesses wefe reliable when they stated that the Appellant had ordered the death of the deceased Tibayungwa at the Army Barracks on 12th September 1972.

The only inference from the evidence is that Tibayungwa died as result of bayonet stabs. He was a citizen of Uganda. He was said to have been a guerilla or collaborator by the Appellant, but '•on the other hand, innocent by the Prosecution. Whichever may it was, ^a Ugandan is not to be killed on supposition. The Courts are there for such ^a person to be tried, and if guilty of treason he would be punished as provided by law. It was not for the Appellant to take the lav/ into his own hands. By the 21st September 1972 the so-called nwarⁿ was over. The deliberate execution of the deceasdd was absolutely unnecessary either in relation to hostilities of for the safety of the state.

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Consequently we confirm the conviction of the Appellant and dismiss his appeal in its entirety.

29th Delivered at Mengo, this , . JULY, day of ...... ^ 199^

manyindo, D. C. J.

OPOKI, J. S. C.

H. G. PLATT, J. S. C.

I CERTIFY THAT THIS IS ^A TRUE COPY OF THE ORIGINAL.

A. L. KYEYUNE, AG. REGISTRAR. 10/11/9^