[1991] UGHC 31

THE aSPUSLin OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT FORT PORTAL CRIMINAL SESSION CASE NO. 31 OF

)' • IVA • £

UGANDA PROSECUTOR

VERSUS ■■■.■■

A1: FELIX RWAMBARALI ⁰ ................ \_■........................ arrncFn A2: MOSES BIGAIRWA ⁰

BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA

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**0.. ...................................................• •••■......................• RL/O U>DL\_iJJ**

The two accused persons Felix Rwambarali and Moses Bigairwe hereinafter referred to as A1 and A2 respectively together with two othexr\*4-^ not before court namely Felix Ongom and Edward Kisembo were indicted on two counts namely.

On count ¹ they were indicted of Kidnapping with intent to procure. a lansom contrary to section 235 (1) (c) of the ^enal Code Act. and on-count ² they were also indicted of Kidnapping with intent '• to procure ^a ransom contrary to the same law\* /

The particulars being that Felix Rwambarali Al, "Moses Bigairwe A2 " - •\* together with Felix Ongom and Edward Kisembo on the 18th May, 19^5 \ at Kahuna Tea Estate in Kabarole district using force seized and took . away Augustine Kamulin^wa against his will with intent to procure a ransom.

The particulars further alleged that on the same date 18th May, 19S5 ' and same place at Kahuna Tea Estate the accused persons together with Felix Ongom and Edward Kisembo using force detained Augustine • K. Kamulindwa,. against his will with intent to procure a ransom.

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In an endeavour to establish its case the prosecution called in aid the evidence of about eight witnesses. Seven of these gave oral evidence whereas the evidence of the eighth witness was admitted at the preliminary'hearing under section 6^ of the Trial on Indictment Decree (Leciee 2.6 of 1971\* On the part of the defence both accused gave their evidence on oatn and called no witnesses.

I think it is relevant at this state to reproduce the evidence of the witnesses. j.t must however be noted that at the end of the prosecution'case I overruled a submission of no case to answer and promised to give my reasons during the course of my judgment. I will do this after summarising the evidence adduced.

P.'2.1 was Augustxne Baguma. His evidence was to the effect that in Way 19&5 he was the District Special branch officer Kabarole. Besides him there were other ranking Police officer^,the . Regional Police Commander in the names of Seruwagi, then the Divisional Branch officer, the District Police Commander then the O. C. CID, kabarole. He was carrying on the duties with the District Commissioner who was being assisted by **4** A2 the Assistant District Commissioner (ADC) Security. He was in charge of the District. There were two other ADC's namely Kahigwa and one Cngotn. He was working with the ADC Security. A2 was in charge of i Security organ called NASA in Kabarole. The witness did not carry out any operation with A2. He did not also get any instruction from A2 as to what lie was doing and A2 was not supposed to give him any information.

In May, 1985 there was a serious Security problem in Fort Portal where the NUM soldiers from the Mountains were fighting Obote II Government and nobody was sure of his life.

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^A security meeting was therefore convened. It comprised the District Commissioner, all high ranking Military Commanders in Obote II Government the Brigade Commander inclusive, The CID Kabarale and the witness\* *kZ* also attended the meeting. That was the time he received information from youth wingers that some people :were involved in banditory activities\* He did not contribute anything. After the meeting a number of suspects were arrested. They got instructions from both the DC and A2 that whoever was arrested should not be released. Among those arrested included Kamulindwa I-. W.2. He was arrested between 8th and 10th May, 19^5\* He saw his wife bring in food to him at the Police Station. He caused I. ...2 to be produced from the Police Cells and he talked to him. r. W.2 told him that he had been arrested on allegations by A1. That the latter hated him and had been arrested by NASA. He went and contacted A2 at his office who told him that the arrest of F. W.2 was a state matter. Because of the security situation a2 was not in good mood. After talking to A2 he returned to Kamulindwa P. W.2. He asked him whether he was a bandit and he denied. Later he learnt that Kamulindwa had been taken to Katojo Prison. Host of\* the people arrested were not released except a few. In ² months time those people arrested in May were released when the NRM took over the government in this area. The OC CID The Regional Prison officer, The Regional Police Commander and the District Police Commander wanted all those people arrested to be charged and taken to court but the DC's office gave no response.- The mode of operation of NASA boys were all different from theirs. That there was an emergency meeting comprising of the police, DC's office, the army whereny statement from t-u-pects were recorded down by Kisembo, balinda and Apollo, After the ;.»ta ternent had been recorded they v.ere sent

to the ^aDC Security who was A2 who decided whether the suspects had to be sent to the tolice or not. it was resolved in the meeting that it was only the ADC security who should take decisions on the suspects and my one who interfered would get it rough from A2. That A2 was endc .ed with the State powers.

when cross examined by the learned counsel appearing for A1, P.¹ replied that F...2 told him that A1 had a grudge against him T. W.2. That it was ^a political one. He said that him not being ^a UPC supporter was hated by kwambarali. F. W.2 told him that A1 being the Chairman of the Worth est Constituency UPC which Constituency he also belonged he would not be in peace with him A1.

And when cross examined by Mr.» Bakuza the learned counsel representing A2 F. 17.1 replied that A2 was the only man who could finally <de.ci.de> on the cases. Those who were taken tocourt and charged were on the directives of Moses Bigairwe through the CID office. The allegations against Aamulindwa was that he was a bandit. That at the time there was ^a district security committee and its Chairman was the District Commissioner. The District Special Branch officer became the Secretary and was its Secretary. That the famous Emergency Security was held at the time and it was chaired by the DC and the ADC Moses Bigairwe was the Secretary and took down the minutes. And that in the committee there was a committee appointed to interrogate the bandits the screening committee. The Chairman was A2 assisted by Kisembo. That he never interrogated any of the bandits including Kamulilindwa.

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'1'he second witness called by the prosecution was Augustine Kamulindwa P. W.2 (The complainant). He testified that in he used to work with Kahuna Tea Estate Kijura. lie was working as a senior Administrative Officer, On 8th May, 19&5 at around 11.30 a.m. he was on duty when he was forcibly arrested by one Felix Ongom a NASA. (National Security Agency), who pointed a gun at him and dragged him to his car outside. He was driven to Fort Portal Police Station and was handed over to the police station r.'/ over to the Police Officer on the counter. Later on was remanded in the police cells where he found other people. He was not told the reasons why he was being remanded in the cells.

On 10th May, 1983 one called Kisembo Edward one- of theNASA boys went and removed him from the cells and took him to F. V-.1's office at the police station wher'^e he found one Ongom, Edward Kisembo, Apollo Muhindo who and another man whose name he did not know/was the secretary to the committee and a brother to the late Kalimuzo. A1 was also there. The referred to committee used to interrogate people. He was accused in the committee as he had abused the then president of Uganda Milton Obote by calling him ^a fool. It was Kisembo who was interrogating him. A1 attended the meeting for confirmation because the witness was arrested on his orders. That it was A1 who caused his arrest. He was accused of having held a meeting in which they collected money to send to the bush. lie was also interrogated by the committee why he had voted for the Democratic Party in the 1980 elections. He used to put his case across but they could not listen to him. lie was even accused by A1 of talking politics while he *was in* prison. After the in terrogation which lasted for one to two hours he was remanded in the police cells and eventually was taken to Katojc Government prison. It was kisembo and Latigo all

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NAS^a men who sent him to prison. He remained in prison till 8th June ¹⁹⁸⁵ when Kisembo and Latigo removed him. P.k',1 went' and took him to hisoffice where he found his wife F. W.3 and his daughter !lrs. Kabwa P. W.4 After being served with tea his wife told him that the authorities were demand ng one million shillings as a ransom before he could be released from the cells. His wife told him that it was proper that they paid that money. After Bagtima had left he was returned in the police cells. He './as never taken back to Katojo prison.

On 11th June 1985 F. W.3 informed him that she had paid 1.5 million shillings to A2 as a ransom for his release from the cells. He was never rleased. He remained at the Police cells till 17/7/1985 when he was brought *Co* court and charged with terrorism. He denied the charge and was taken to katojo Prison on remand. P. W.2's evidence went on to show that on 14th May, gt around A.00 p.m. he saw A2 while he was in Police cells. A2 had gone to address the remands and the latter introduced himself as head of the security working in .the DC's office. That he was charged with others on a charge of terrorism. He was-never tried in court. He was released fro(ii Katojo Prison on 24th July, ¹⁹⁸⁵ when the KRM had taken over power in this area.

hhen cross examined by the learned counsel appearing for A1 F. V/.2 replied that he was collected by Cngom and taken away and there he met members of the committee who were Felix Ongom, Edward Kisembo, Kahigwa, Apollo Muhindo and the Secretary to the committee brother of one Aalimuzu. He did not know whether Rwambarali A1 was a member of the committee but he met him there. That the members of the committee were the people he had already me^ncnr:d. That he had never talked to Rwambarali ever since he left prison. It is possible he could have been arrested without Tfwambarali ^fs instigation.

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And 'when cross examined by the learned counsel representing A2, I-. 7.2 replied that his wife told him that Cngom Kisembo and Rwambarali demanded one million shillings and she further informed him that she had not paid the money. She wanted to prove whether he her husband 7;as still alive. He die not approve of the idea. And that apart from Katojo prison and the police station cells he was never detained elsewhere. *And that* there were some people interrogated by the committee and then released. That the Nasa group was the security organ which washunting people opposed to the then government. That Ongom, Al, A2 and Edward Kisembo were together all the time.

The third witness to testify for the prosecution was Ephrazia Kamulindwa P. W. J.-She testified that on 8th May, 19^5 she was at school where' she was teaching. She got a report that her husband ' \* P. W.2 had been arrested and taken to Fort lortai Police Station. She went there and talked to him. p.17.2 told him that he had been arrested and he did not know the reasons for his arrest. She went back but used to see him every day when she was bringing him tea.

One morning when she had gone to see him she did not find ]".w.2 there. He had been taken to Katojo Prison. She saw him again after an interval of one month. She found him at Fort Portal police Station. She\* w-as together with her daughter Mrs. Kabwa, P. W.4 and had brought him tea on that day.

She hud known A1 before and came to know A2 when her husband, was arrested. At that time some people arrested used to be released. £Jhe received information that if she contacted the NASA people that could eventually lead to the release »f Her husband P. W.2. She got some- one to lead her to the NASA people? men,

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She went to see them. she found the head of the NASA man A2 at his house at tlie Senior government quarters. She was together with her daughter , ^rs. Kabwa ^F..,4. The man who introduced him to A2 was called James. C-n reaching A2's house it was around lunch time. She knelt down before hi.-.: and beseeched him and requested A2 to release her husband F. W.2. ^a2 requested her the names of her husband and she gave him the names. Then A2 told her that his boys wanted to pick up Kamulindwa and slaughter him boc .use of his (P. V/. 2\*s) utterances. when A2 talked like that they got shocked. A2 thereafter ordered them to get out of his house because he accused them of wishing to vomit before him probably because of their shock. She got out of the house together with r. W.4 James remained behind together with A2. The latter informed them .that he would find them (P..-3 & P. W.4) in his office, i.e. The D. C.'s office. They went to A2'^s office and still requested him to release her husband. • • A2 demanded ³ million shillings .from her. She said shs did not have that much. They bargained. Finally A2 told her to go and bring 1.5 million shillings because he was soon proceeding to Kampala.

On 11th June, 19&5 the witness together with her daughter P. W.4 and one iJbaijana Ldward went to A2's house at Homa Government quarters anc handed over 1.5 million shillings toA2. A2 was together with A1 and one Feliz Kisembo when she handed over the money to A2. The latter took the money and smiled and assured her that he was going to release P. W.2 immediately. It was lunch time. A2 told them was going to Kampala on the following day. >vhen he returned after a week she went to greet him at his office. A2 said there was some charms in the money she gave him. because he met. a Lot of misforiuens when he went to Kampala. She replied that she did nothing about the money. A2 who appeared annoyed pulled out his pistol and enquired from them why they were distubing him.

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*ft.* After seeing the pistol she remained there for a short time and then left. ^h² told her to go way. ] . V.. ² '-as never released despite the ransom of 1.5'million shillings given to A2.

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That she withdrew one million shillings from the Uganda Commercial Bank Fort Portal where she operated a joint account with r. W.2 and that she collected the rest of the money 0.5 million shillings from one Simon Kateeba (P.h.6). P. W.2 was at that time still detained at Katojo Prison, he was released when the NRA/NRK.iook over power in this region.

When cross examined by the learned counsel representing A1 I. V7. J replied that when she went to A2's house she found there A1• She did not talk to A1. She only greeted A2 whom she had approached before. She did not find out from A2 what A1 was doing in his house. She -did not. know what A1 was doing in Bigairwe\*s house.

•when cross examined by the learned counsel appearing for A2 P. W.3 replied that her husband told her that it was A1 and the NASA who had arrested him. That Bigairwe did not arrest Kamulindwa from Kijura. Her' husband did not tell her that Bigairwe went to Kijura and arrestei him. That Baguma P.17.1 was the first person who advised them to pay Shs. 500,000/=. That Baguma told them to increase the money up to 700,000/= shillings. t L- c-Then she willingly went to Bigariwe to plead with him to have her husband released and when she paid that money she knew it was good to do so and it was also good for A2 to receive that money. She brought A2 to court because he failed to fulfil his promise. If A2 had released her husband she could not have bothered.

P. W.4 was Mrs. Beatrice Kabwa. She is the daughter of Mr. and Mrs. Kamulindwa P. W.2 and P. W. J respectively. She is a teacher graduate. The evidence of this witness is similar to . ' that of P. W.3\* She was **together with** P. W»J when they negotiated with A2 for the release of

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F. '.2. Also she was to,-.'ether with P. V/.5 when money was handed over to A2. She was also together with her mother when the'' visited the police station where I.ft.² was being detained in the police cells. Her father told her -while in prison that A2 was the boss of NASA. Th.ct her mother told her he gave Shs. 500,000/= to Kaganda P. W-5 who h?.nded the same to Hwambarali Al, That her mother did not inform the court about that money. That the handing over money to A1 & A2 was legitimate. Her complainant against A2 was that he ate the money anti never released her father. If her father had been released,-she -could not have complained at all.

In cross examination by the learned counsel appearing for A2 P./c.4 replied that she did not go to A2's house on the latters invitation but they went there on their own iniative. That prior to going to A2's some one had asked for money for the release of her father and those were Kisembo, Ongom and Rwambarali A1. Thai- Hi.a-rrot pay money to those people because they did not trust them.

The fifth witness was Peter Kaganda. In June 19^5 he received information that P. W.2 had been arrested and taken to Fort Portal Police Station. He went there. P. W.2 calls him (P. W.5) his uncle. He talked to him. P. W.2 told him that he had been arrested on allegations that he was collaborating with the bandits. P. W.2 told him that for matters to be settled A1 should be contacted. He went and contacted vl at his home, lie rquested A1 to go to Fort Portal and release The asked for money, from him for A1 's transport and feeding w.-.i< ¹ amounted to Shillings 50,000/=-. . He did not give him that money -then. A< went away and told him tc Al' t'ook his papers and returned at Glue Pot P.estuaranv. When A'; returned the witness gave, him Shs. 50? 000/= on . the. .pretext that A1 was going to see A2. He got that money from P.-,.3.

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After that they boarded a bus and camo to Boma to the Administration block. A1 and P. W.5 went to the office where they met an old man a Munyarwanda. A1 told him he was going to the office cf the DC to see Moses A2. A1 did not come back. However A2 returned to the office. He went and talked to him. He talked to A2 about the release of P. W.2 and A2 told him to go to the police and see one Kisembo^ He complied. He talked to Kisembo who told him the mar\*;er was a very serious one and required a lot of money.

The sixth witness to testify for the prosecution was Simon Kateeba P. W.6. He testified that he knew both p. W.2 and P. W.3. P. W.2 was a friend. In 1965 he received information that P. W.2 had been arrested and that he was detained at Katojo Prison. P. W. J approached him and requested him to assist her with money to thetune of Shs. 500,000/=. She wanted that money as a ransom to release her husband P. W.2 from Prison. She was together with her daughter and one Edward. He told him that the money was being demanded by the NASA boss whom he did not know. She told him she had one million shillings and wanted 500,000/= shillings to make a total of 1.5 million shillings being demanded from her. He gave her the money 0.5 million shillings. She put the money in the bag and went away. After giving her that money Kamulindwa remained in prison. The latter came out of prison after the NPA -had taken over Fort Portal.

When cross examined by Mr. Bakuza learned counsel represen tin-g A2 P. W.6 replied that the money was on loan and P. W.3 paid back the money after her husband had got out of prison.' When he gave that money to Mrs. Kamulindwa he knew she was going to give that money to somebody as an inducement to have Kamulindwa released. In so doing he knew the act was bad.

The seventh witness to testify for the prosecution was Edward. Mboijara £P^Wt7). In May 19^5 while he was at home P. Vh} reported to him that her husband p. W.2 had been arrested. On the following morning he went to see him at Fort Portal Police Station. P. W.2 told him that be had been arrested by NASA MEN, i.e. Kisembo and Ongom on allegations made against

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him by A1. He talked with relatives of F. W.2 in order to find out how they would get him out of prison. He contacted Baguma F. W.1 who told him that money was needed to be given to the NASA people to assist in the release of Mr. Kamulindwa. He orgainised money with Mrs. Kamulindwa Hr. Edward Kabwa, Mr. Kateeba and then Mr. Kaganda and they released at first Shs. $500.000/$ =. Baguma told them that money was going to be given to big people in NASA. He did not give out the money. He tried to look for the right person/ he later came to know as Moses Bigairwe the toss of NASA. That Shs. 1.5 million was paid to A2 at his house at Boma by Mrs. Kamulindwa P. W.2. That he was present in A2's house when that money was handed over to him. That besides A2 the following people witnessed the occassion i.e. Mrs. Beatrice Kabwa, P. W.4, Mrs. Kamulindwa P. W.3, Rwambarali A1 and one Kisembo. He had known A1 and A2 before. When money was handed over to A2 they told them to get out. That P. W.2 was never released from prison till after the NRA ran over Fort Fortal.

When cross examined by Mr. Mugamba counsel representing A1, P. W.7 replied that he knew Bigairwe as head of NASA and knew Rwambarali as a a support of UPC and for him he was a believer/follower of General D. P. Rwambarali was Secretary/in the Omukamas Government and later became Secretary General of Kabarole District Administration. At the time F. W.2 was arrested Rwambarali was known as Chairman of UPC. That he accompanied Mrs. Kamulindwa and Mrs. Kabwa to Bigairwe's home simply because Mr. Kamulindwa told him that she had made an appointment with A2. His role was to accompany them as a man and also went with them because he was one of those people arranging for a Kamulinuwa's release. He was also protecting them because the place

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was not safe. That he was not suprised to find Al there because A1 and A2 used to do the same job. They were all members of NASA. That they collected some money 1.5 million shillings in order to have Kamulindwa released. When cross examined by the learned counsel appearing for A2 P. W.7 replied that Kamulindwa did net tell them the reasons why he had been arrested. He further replied that Kamulindwa did tell him the names- of those who arrested him as Kisembo and Ongom. That he never contributed any money towards the release of Kamulindwa and that he never mobilised any fund from people for the release of Kamulindwa\* On one occassion they orgainised for ^00,000/= shillings but Bagurna said that was not enough and he asked for first saw Bigairwe physically when he went to his office to negotiate, with him. He was together with Mrs. Kamulindwa. They were only two. They had gone to see him so that they release Kamulindwa. That personally he never apprached him. They used to approach him as a team. They were at A2's office.' He was together with P. W.3 and P. W.4. Also on the third occassion they went at A2's office he was together with Mrs. Kabwa and Mrs. Kamulindwa. When he introduced himself and Mrs. Kamulindwa to A2 that was the moment A2 told them that he could not assist them without Rv/ambarali. Because of what A2 told them al had colloborated with A2 in arresting Kamulindwa P. W.2.

The evidence of D/AIP Turnwine P. W.8 was that on 12th August, 19^6 he' together with D/C Kachope went to Kakibale village and arrested Felix Rwambarali on charges of » Demanding money with menaces. He escorted him to Fort Portal Police Station.

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In hi;-: sworn statment A1 testified that in 19&5 he was at his farm at Rusekere. He was ^a member of the Uganda Peoples Congress. He first became ^a member of the UNC (Uganda National Congress). He^x firsixbkean^e

in 1952. He was one of the 5^ founders. They split in' 195'6 and joined the United Congress Party. They split and he joined the Uganda National Congress in i960. He has been a member of the Uganda Peoples Congress since then and he is a strong diehard supporter of the- party. As ^a member of UPC he has personally benifitted in its ranks. In March 1960 He was elected a member of th\* National Council of the UPC and also as a member of National Executive of the party and in 1962 he was elected president of the Western Region of the UPC and that was up to 1971 then Amin the UPC Government. As president of the Western Region he used to lead those \* Districts administratively and politically. The Districts were, Bunyoro, Ankole, Kigezi and Toro. He was elected member of Parliament 19&1 - 62 and went to parliament in Kampala. He was elected speaker of Toro Kingdom. In 1967 when Uganda became a Republic he became the Secretary General of Toro Government till 2^ th January, ¹⁹⁷¹ when idi Amin took over. Since the reign of the Military Government he was allocated business and a shop in Fort Portal Town and when Amin was toppled he did not do anything. He remained a businessman. When UPC emerged again in 19^0 he never participated in that Government but was a member of receiving team when Obote returned from Tansania. He was never a UPC Chairman in Obote ¹¹ Regime. He met A2 for the first time in December 1986. He hsud never heard of him before.

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The allegation that Kaganda Peter took him to go and see A2 was false. Kaganda and Kamulindwa were related and those were the very people making those allegations against him. He had never gone to Rigairwe's house with Kisembo and had lunch there. All those were lies and it is not true that he was at the Folice as alleged by Kamulindwa and that he warned Kamulindwa not to talk politics at the police station. He did not know Felix Ongom and Edward Kisembo and played no role in the arrest of kamulindwa. He had known Kamulindwa for the last forty years, but has never been to his house and they do not go to the same club. That his party has always been in the government and Kamulindwa's has always been in the opposition. Kamulindwa belongs to the DP. The Democratic party. He knew one Edward Basaliza Kabwa. He is a son of his friend. He recalled when Kabwa was marrying he gave know him a calf as a present. He came to/in court the woman he married as Kamulindwa's daughter. P. W.4. He never appacached her on matters concerning Kamulindwa's arrest. He was not approached by any one on matters concerning Kamulindwa's arrest. During that time he was / a position either in the government or party to assist in the release of any one arrested. He knew NASA as a Security organ the country. He could not tell whether he had any friends in NASA because NASA boys did not have uniform. He did not know the relationship between the NASA and UFC. He was in the village. He did not know what was going cn. He knew of Kamulindwa's arrest. He was arrested in 1985. He was scrry for it. He did not know why he was arrested. He never visited him in prison and there was no need for him to do so. He never received any money directly or indirectly from Kaganda or any one else in connection with the arrest of Kamulindwa.

When cross examined by Mr. LuyomLo Kalule counsel appearing for the state A1 replied that any one could hold any office in the UPC even if one was not an MP. He censed to be a conditator to Obote other than receiving

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him from Bushenyi. He did not know whether Cecilia Ogwal was a cordinator other than receiving him from Bushenyi. He did not know whether Cicilia Ogwal was a cordinator. She is an official of the Uganda Peoples Congress at the Uganda House. She is the Secretary General. He was sorry that Kamulindwa was arrested but he was not surpirised of his arrest bee ..use of the way he talks. He never took part in the arrest of Kamulindwa. He knew about NASA as he knows where to pay his graduated tax. He reported the utterances of Kamulindwa to the authorities. One time P. W.2 abused ex president Obote that he should go and eat his faeces. Ho also abused him that the witness sould go also and eat Cbotes faeces. That P. W.2 made other utterances when the latters daughter was marrying at Virika to the son of Basalisa. That he reported him to the DC for his utterances and could not tell whether Kamulindwa was arrested as ^a result of his letter. He saw A2 first time in life. in December 1986. He did not know his house at all. That Kaganda never approached "him to go and see A2.

In his defence A2 testified that in may 19&5 he was in Fort Portal. He was an ADC in charge of security, ADC was a cover name for a District officer NASA. It was a post in the Civil Service. He fell in the establishment in the presidents office. He was appointed in that post in 1983 and right now he was a cultivator. He started working in Fort Portal in '1984. NASA is ^a short name for National Security Agency. 'It was a secret police organisation. It was supposed to collect intelligence information submit it to the presidents office and other relegant.. security organisation in the District. Other security organisation were not directly under his control. They used to have District Security ,..../l7 committee together with other security agencies and even the prison and security Department would get involved. The Chairman of the District Security meeting was the District Commissioner.

Apart from NASA there were other Security intelligence organs in the District. He knew of a Military Intelligence under the $\epsilon$ Commanding Office There was also special Branch under the DPC and there was Military Intelligence under the office of the Minister of State ADC under security all those other security organisation were not under his control. Apart from collecting information that was basically its role. His residence was in Boma as one goes to the macuntain of the moon Hotel. That he knew Baguma P. W.1 as District special Branch officer. He was a policeman. He knew Felix Ongom as Military Intelligence officer who was sent to Kabarole District in March 1985 and was reporting to the DC's office. Felix Ongom was never under him. He also knew one Edward Kisembo. He was under him as a NASA. He would sometime report but sometime as an intellegence officer he would work on his own and take decisions independant of him.

The security situation in May, 1985 in Fort Portal was tense because the rebel had penetrated into Kabarole. They were in Bunyangabu and that was the NRA. Something was done to contain the security situation. The army was increased in its number the intelligence organisation was kis the minister of state addressed all heads of Department strengthened and/including the DC as to what could be done about the security orgainsation including the DC as to what could be done about the security situation. They took some precautions. Road blocks were amounted and they used to have weekly District Committee meetings to review the situation and the Chairman was the District Commissioner. The secretary was the District Special Branch office. It was Baguma who was the Secretary and in May 1985, the orgains forming the District Security committee were the police the prisons, the army and there was the NASA.

. . . . . . . . . . . . . / 18

The District committee gets a report from the District Special Branch officer as to all sorts of things which had happended in the District and also used to get security information from other organisation and then decisions were made. That was what they were doing.

At a certain time the District Security meeting a decision was taker: ^v^o arrest suspected rebels. The Chairman of the security committee was t.'ie DC and the Secretary was the Special Branch officer. According to the decision it was mainly the police supposed to carry out the arrests but even the NASA any responsible citizen could effect the arrest and take the suspects to the screening committee which was established at the time of the District Security committee. Members of the scr.e\_cning committee composed all members of the District Committee apart from prisons. NASA was represented on the screening committee by Edward Kisembo, Before any NASA carried out the arrests in the circumstances he neepf not consult him. After arresting the NASA officer could not report with the suspects to his office. The suspects could be taken to the nearest police station/post and in the absence of police post the NASA officer could not report with the suspects io his office. The suspects could be taken to the nearest police station, post and in absence of police post the NASA would hand ever the suspect to'the sub county chief or the county chief.

When the NASA officer had carried out the arrests and taken the suspect to the Chief he would not report that to him. During that time as head of NASA he never arrested any of the suspected guerillas. And also never ordered any NAS.\ officer to arrest any of the suspects'". They used to get reports from the District Special Branch officer from the DFC. frr,m th- r.attali-n j. O. and from the commanding officers in the District Security Committee meriting. He never received such reports in his office.

............................ /<19

*'f*

?8

Those people reported to the DC's office as having been arrested were released and others taken to court and were remanded in custody. He was not a decision maker as who should be released and who should be remanded. That he knew the complainant Kamulindwa. He first knew him in 1986 when he visited him when he was a prisoner at Muhote Military barracks. Kamulindwa came with Civil Intelligence officer in charge of Kabarole District who introduced Kamulindwa to him plus his wife (Kamulindwa's wife) as people whose money he had stolen. The Intelligence officer threatended to kill him unless he admitted having stolen Mrs. Kamulindwa's money. The intelligence officer called a Seargeant and was given 100 strokes of the cane. He was caned in the presence of $F. W.2$ and $F. W.3$ that was how he came to know them. The same lady who testified in court here was the same lady who came to Muhote Military barracks. He had never seen Mrs. Kamulindwa before.

The witness then proceeded to narrate how he was arrested from William street in Kampala and brought to Muhote Military barracks in Fort Fortal. He was told of the reasons for his arrest that he was "kipinga" anti NRM and that while an ADC at Fort Portal he used to torture prople and steal their money.

He could not recall whether the names of Kamulindwa featured moment as being one of those arrested. He had never at any $/$ gone to the Folice Station and addressed the suspects including Mr. Aamulindwa. He knew Mrs. Kabwa (P. W.2) for the first time when she was 🛸 testifying in court. He came to know Mboijana (F. W.7 when testifying in court.

and the same and the factor

Before this he had not known him. He knew dames of the Custodian Board. They used to meet in Bors and chai. Ins. hamulin wa, Mrs, Kabwa and James never came to his place to beseech him to release Hr. Kamulindwa. They had never gone to him at any one time to negotiate for the release of Mir. Mamulindwa. $...$ /20

$\mathcal{L}_{\infty} = \mathcal{L}_{\infty} \times \mathcal{L}_{\infty}$

$\sim$

He did not also see Mr. Rwambarali on the same day. That P. W. J, F. V/.4 p. 1.7 never went to his place but Kisembo used to visit him. There is no other person who gave him money to secure the release of Mr. ^MamtOindwa. '..hen Kaganda testified in court he could not recall seeing his face before. That he had known Kateeba before. The prosecution witness testified that way because he was an intelligence officer and they did not like him. Intelligence officers usually after the overthrow of their regime they are normally persecuted in that manner.

That at Kuhote barracks he was tortured and came out of the barracks towards august 19^6 and was brought to the police Station and finally to court and charged accordingly. He knew that Kamulindwa was arrested and detained. lie produced a document exhibit D1 to that effect.

•Alien 'cross examined by the learned counsel appearing for the defence he replied that he went to Fort Portal Chief Magistrate's Court to find one of the records of kamulindwa. He went to find out who ordered for his arrest. And who charged him. He paid shillings 200 for the record (Ex D1).

In re-examination A2 replied that it was not his responsibility to take to court NASA suspects for charging. That was the responsibility of the OC CID Fort Portal police Station. He was not duty bound to report to him about those whom he'had charged or not charged.

In a'nutshell that is the evidence on record.

I now give reasons why I overruled the submission by the learned counsels appearing for the-accused persons that the latter had no case to answer.

^T'he principles upon which a submission of no case to answer may be properly made and upheld are well settled are as follows.:-

> (a) when the prosecution has not adduced a satisfactory evidence to establish one or more of the essential ingredients of the alleged offence. •

...................../21

(b) When the prosecution's evidence has been so discredited as a result of cross examination or is so manifestly or so unreliable that no reasonable tribunal could safely convict on it. See Ramnlal Bhatte 1957 EA 332, Uganda vs Alfred Alen 1974 HCB 179. Wabilo alias Musa v R. $1960$ EA 84.

It is also trite law that a prima facie case does not mean a case proved beyond reasonable doubt. The court is not required at that stage to decide finally whether the prosecution evidence is worthy of credit or whether if believed is weighty enough to prove the case conclusively. The final decision it has been held time and again in max many cases can only be properly done when the case for the defence has been made. See Uganda vs Eryazi Kasaija HCCS No. 99 of 1990, unreported.

In the instant case the accused were indicted that they & kidnapped Kamuliniwa with intent to procure a ransom or to detain him with intent to procure the said ransom. The ingredients therefore in my opinion were that the accused participated in taking away or detaining the domplainant against his will and that the act was unlawful and the motive of the taking away was to procure a ransom. F. W.2 testified that he was seized and taken away by Felix Cngom of the NASA of which A2 was the boss. There was also evidence from F. W.3, F. W.4, 1. W.1, F. W.7, & F. W.0 to the effect that the said hamulindwa was detained at the Police Station and F. .. 1 was alleging that it was AT who caused his arrest. There was also evidence to the effect that F. W.3, P. W.4 and F. W.7 attended certain mere meetings with A2 where there/negotiations for ransom to have Kamulindwa released from prison. In addition F. S.3, F. W.4 and T. C.7 testified that money 1.5 million shillings was latted to A2 as a ransom for the release of Kamulinuwa from Frison. Al and Kisembo were in attendance. The accumulative effect of all this was that the accused persons had to may something about all these accusations. Moreover I was not required at that stage to decide conclusively the instant case. That would be $\ldots$ $\ldots$ $\ldots$ $/2.2$ done after hearing evidence from the defence.

$21.$

I would now proceed to evaluate the evidence on record and finally decide the case. As already indicted above the 2 accused persons were indicted on two counts of kidnapping with intent to procure a ransom contrary to section 235 (1) c of the Penal Code. According to the facts of the instant case the offence(s) is committed by:-

> "Any person who by force, takes, away or detains any person against his will with intent to procure a ransom extra."

$\mathcal{O}(\mathcal{O}(\log n))$

The concise Oxford Dictionary defines the word to kidnap as "carry of (person) by illegal force" and in Archbold 38 Edition paragraph 2796 "Kidnapping" is defined as the stealing and carrying away of any person of any age or either sex against the will of such person" Further according to the decision of the English Court of Appeal in Regina vs Reid 1972 3 NLR Page 395, the offence of Kidnapping is completed when the victim is seized and carried away against his will." See Grace Kimeze and another vs Uganda 1983 HCB P. 9.

There are indeed a wealth of authorities as to what amounts to kidnap. In Haji Mohammed Sanyomo Birkade vs Uganda Court of Appeal, No. 12 of 1982 reported 1986 HCB Page 6. It was held that the offence of Kidnapping with intent to cause a person to be secretly and wrongly confined comprises of elements consisting of Kidnapping or abduction with the specific intent to cause the person to be secretly and wrongfully confined. The intent must be present at the time the victim is seized and taken away and it must be proved and not merely presumed.

Also see Uganda.vs Azhari Abdu Bebbi 1984 and Faddy Kalenzi vs Ugand Supreme Court of Ugan a Criminal Appeal No. 4/88. Georgrey Tinkemalirwe and another vs Uganda S. C. U Cr. App. No. 5 of 1988. above Though the/two cases concerned with Kidnapping with intent to murder they are relevant as to what amounts to kidnap.

From the above proposition of the law the prosecution must adduce evidence to prove beyond reasonable doubt :-

. . . . . . . . . . 23

- (1) That the accused persons participated in forcefully taking away or detaining the complainant against his will, and finally - (2) That the act of the accused persons was unlawful and the motive of taking wway was tosecure a ransom.

In the instant case there was evidence from F. W.2 that while he was at his place of work one Felix Ongom who was armed with a pistol forcefully seized him and took him away against his will saying ak that hw was wanted at Fort Portal Police Station. In fact later on P. W.2 was visited and seen at the Police Station by a number of prosecution witnesses like his wife and daughter P. W.3 and F. W.4 respectively plus others like F. W.1, F. W.7 and F. W.5, Felix Ongom was labelled a member of NASA of which A2 was its boss whereas A1 was accused of working in concert with A2 of NASA and having had a hand in the arrest of F. W.1 because of the latters utterances.

As could be deduced from the testimonies of both A1 and A2 they denied having participated in the arrest of P. W.1. The accused persons could only be liable if they had a common intention with Felix Ongom and one Edward Kisembo who did not accompany Ongom Felix when he went to arrest Kamulindwa as provided for under section 22 of the Fenal Code act which states:-

> "When two or more persons form a common intention to prosecute an unlawful purpose in conjuction with one another, and in the prosecution of such purpose an offence is committed of such nature that its commission a probable consequence of the prosecution, **Was** each of them is deemed to have comitted the offence."

> > $\frac{1}{2}$

There are a wealth of authorities as to what amounts to this doctring $\cdots \cdot$ of common intention. It is now settled law that an unlawful common intention does not imply a greatranged plan See R v Okute 1941 EACA at P. 80. Also a common intention may be inferred from the presence of the accused person their actions and the omission of any of them to disassociate himself from the unlawful act See R vs Tabula Yenka, common intention could also develop in the corse of events though it might not have been present right from the start, and in order to make the doctrine of

common intention applicable it must be shown that the accused had shared a common intention to pursue a specific unlawfully purpose which led to the commission of the offence See Ismail Kisegerwa and another vs Uganda Criminal Appeal No. 6 of 1978. Court of Appeal for Uganda Reported 1979 HCB Fage 82. Also See Uganda vs Sebyala and other 1969 EA F. 204 Difasi Magayi & others vs Unanda 1965 EA F. 667.

$25$

The learned counsel appearing for the state submitted that A1, A2, and one Edward Kisembo had a common intention with Felix Ongom who seized and took away F. W.1 against his will and dumped him at the Folice Station. The two learned counsels representing the accused persons submitted that no such common intention.

Let me try to resolve the issue. F. W.1 a special branch officer in fact a police officer testified that he was carrying out the duties with District Commissioner the DC who was being assisted by the ADC A2, That A2 was in charge of the security in the District. There were other AOC's like Ongom & Kahigwa. A2 was the boss of NASA. Because of the disturbances at that time NRM was fighting to topile the Obot II Government, a District Security Committee was convened. It comprised the DC, all High ranking military commanders the police CID Kabarole. The District Security resolved to arrest all suspected bandits who were later Committee : screened in the screening committes which investigated the activities of the suspects. Those with incriminating evidence were detained & others found innocent were released. P. W.2 was arrested, screened and detained. $F_*W_*2$ testified that he was arrested by / Ongom. F. W.3 and P. W.4 were only told by Kamulindwa that he was arrested by Ongom because of his atturances. ........../25

$\tau_{\rm c} = \tau_{\rm c} \tau_{\rm c}$

$\sim$ 1

$\cdots$ A2 pave what I would call a comprehensive analysis of the security orgarns of the time and testified that Felix Ungoin did not belong to NASA BUT BELONGED TO THE Military intelligence which was not answerable to him. He conceded that Edward Kisembo did belong to the NASA and that before any NASA carried out the arrests need not consult him. I was impressed, by the explanation of A1. I believed him over this issue.

From that analysis I agree with the submissions of the learned counsels ^&gt; representing the accused persons that there is no evidence on record th-.it Ongom actually belonged t-~. NASA. xt was not enough just to mention that he was a NASA because he was in the DC's office where NASA was also accommodated. There is no evidence that Ongom was directed by A2 to go and arrest F. W.2 as was the case in Rwakasisi & An or vs Uganda Supreme Court of Uganda Cr, App. No. 8/88.

Moreover on being arrested according to P. W.2 Ongom told Kamulindwa that he was wanted at the Police at Fort Portal and not at Bigairwe and was in fact dumped there. There was no evidence that the said police station was under the control of A2. As regarded A1 he was not a member of the panel of the screening committee. He never ordered for the arrest of P. W.2. I'here is no evidence connecting 'him with the arrests. Even P. W.2 conceded in his evidence that A1 might not have been responsible for his arrest. Therefore the fact that A1 belonged to the UPC which probably was working hand in hand with other Government security orgarns at the time of the insecurity in Fort Portal that was not enough to connect him with the arrest of J. W.2, neither did the report he made to the authorities that Kamulindwa insulted ex president Obote.

My finding^ therefore is that no such common intention has been established as per the evidence on record and in the spirit of the proposition of the law as enunciated above. The accused persons therefore did not : \* participate in forcefully taking away or detaining Kamulindwa against his will. ^J'here is no evidence direct or circumstantial to establish this common intention.

' .............. ....................../26

I would now consider the second ingredient of tin offence(s) that the act of the accused persons was unlawful and the motive of the taking away of Kamulindwa was to secure a ransom.

1-. 7.2 testified that he was arrested and dumped at Fort Portal Police station. Then was remanded at Katojo Prison, Then brought back and met P. W.3 his v/ii\*.. and P. W.4 his daughter who in fact strongly advised him to pay monies for his release from cell. P. W.^i and P. W.3 were emphatic that 'the boys wanted money before P. W.2 could be released from the cells.

Th.; .accused persons denied having be..- involved in the arrest and detention'of P. W.2 of course the burden of establishing their guilty beyond reasonable doubt rests upon the prosecution throughout. See .vcolmington vs DPP.

In his submission ^r. Kalule Luycmba counsel appearing for the state submitted that the acts of Edward Kisembo and Ongom in bringing P. W.2" from Katojc Prison was none other than those acts intended to extract money from him. That the detention and imprisonment was unlawful and the reason for his being kept at the police was to ensure that money was paid before he was released from the cells.

That thv interrogation committee was smokescreen to cover up the real intention of procuring a ransom which was actually paid. P. W.2 did not commit ^a treasonable case. Why did it *s* take the prosecution all that long to charge him. P. W.2 was arrested on 11th June 19&5 find was taken to court on 17/7/1985\* That P. W.2 should have been taken to court immediately on being arrested. The learned counsel referred me to section 30 of the Criminal Procedure Code Cap 107 which briefly states where any person has been taken into custody without a warrant for an offence other than where murder, trer.con or rape che officei\* in oahrge of the police station/the sus.pect is being held shall bring such person to an appropriate Magistrate's co'urt within 2zi. hours.

/27

"Then the learned counsel remarked surprisingly that "It appears the arrest of P. W.2 was lawful."

$27$

The learned counsel appearing for A2 submitted that the arrest of P. W.2 was lawful. All arrested persons were taken to the police and there was investigation and screening committee composed of NASA Army, DFC, CID and the representative of the special branch. And after screening those found innocent were released and those with evidence and incriminating them were taken to court after the CID was satisfied.

I have already found that the accused persons never participated in forcefully taking away or detaining the complainant against his will. In case 1 am wrong in so finding there was evidence to back up the submission of the learned counsel appearing for A2 that the suspected guerillas were arrested as per the evidence of F. W.1 and screened and those found innocent were released and those with incriminating evidence were taken to court. F. W.2 testified that he was arrested because of having insulted the president and was collecting money to send to the bandits in the bush who were then fighting the legitimate government of t ha t the time. I agree with the learne'd counsels for the defence/those were treasonable offences as against the state and intended to alarm or annoy or redicule the president See section 25 and 26 of the renal Code Act Cap 106. F. W.2 was arrested and taken to the Folice Station later was screened by the screening committee together with many others. Those found innocent were released but P. W.2 was remanded in custody and was taken to court and charged together with many others of the offence of Terrorism centrary to section. 28 (3) (b) of the renal Code as per the exhibitable unreported In Ivan Kiiza and another High Court Cr. Session No. 28 of 1985/the accused were indicted of Kidnepying with intent to murder the 2 victims. There was evidence that the victims were taken to Fort Portal Police and later caspeare. This court found that the victims were lawfully arrested by the to the service $...$ $28$

$\mathcal{L} = \{x_1, x_2, x_3, x_4, x_5, x_6, x_7, x_8, x_7, x_8, x_7, x_8, x_7, x_8, x_7, x_8, x_7, x_8, x_7, x_8, x_8, x_8, x_8, x_8, x_8, x_8, x_8, x_8, x_8$

police on suspicion of having committed some crimes and that there was no kidnapping of the victims. My finding therefore is that the complainant was lawfully arrested and detained dm • of having committed a cognisable offence. A1 had nothing to do with the detention of P. W.2. A2 went to Police station with a view to address the suspects and that was all.

As regarded the money affair, That the motive of the taking of P. W.2 was with ^a view to secure a ransom for his release from the cells. If the purpose of arresting F. W.2 was to procure a ransom then P. W.2 could not have been taken to the police but elsewhere where the ransom could be squeezed from him. Also if A2 received the ransom I see no reason why he did not release P. W.2. I do not agree with Mr. Kalule that the screening committee was a cover up and that F. W.2 was detained with a view to extract a ransom from him. I am of the view that the security situation at the time was tense. The then government was battling for its survival therefore the- normal procedure of dealing with suspects was in my opinion not followed because ² months after the arrest of Kamulindwa the Obote government was overthrown.

Besides that let me examine the money affair. The payment of money 1.5 million shillings, to A2 by P. W.3. The latter testified that she withdrew ¹ million shillings from the bank where she held a joint account with her' husband P. W.2. Then Shs. 0.5 million shillings was loaned to her by Simon Kateeba P. W.6 a family friend. When cross examined by the learned co'unsel appearing for ^k A2 she replied that P. W.1 was the first person tbo advise them to pay 500.000/= shillings and also it was the same . P. W.1 who advised P. W.3 to'increase the figure ..to Shs. 700,000/=. However in his evidence Baguma F. W.1 frantically denied to have taken part in the release of P. W.2. Then came the story of Peter Kaganda F. W.5 that he collected money 50,000/= from P. W.3 which money was handed to A1 as.'his transport and

feeding so that he A1 could go and talk to A2. It is not clear whether the whole of that money was spent by A1 on transport and feeding. Then came another story from Mboijana P. W.7. He was part and parcel in organising funds as a ransom for the release of F. W.2. In examination in chief he testified that he organised money with P. W.3, P. W.4, Mr. Kateeba & Mr. Kaganda and others and that they realised 500,000/=. In cross examination by Mr. Bakuza counsel representing P. W.7 replied that he never contributed anything for the release of P. W.2 and that he never mobilised any funds. In fact it is hard to say whether it was P. W.3 or P. W.7 the truth who told this court/about how much funds were raised as a ransom for the release of P. W.2 from the cells. In fact P. W. $\beta$ did not know where that money went. When it came to handing; over the money 1.5 millions shillings to A2. F. W.7 did not know how much money was handed to A2. He never counted the money despite the fact that he travelled with P. W.3, P. W.4 and was in attendance when money was handed over to A2. There were still contradictions between P. W.7 P. W.4 and P. W.3 testimonies as to the number of times negotiations were carried out at A2's office for the release of P. W.2 and the number of people who approached A2 and participated in the negotiations.

.5ö

The law on contradictions and or inconsistences is that grave inconsistence if not explained satisfactorily will usually result in the however evidence of the witness being rejected minor inconsistences/will not usually have that effect unless they point to deliberate untruthfulness. See Tajar vs R EACA Cr. Appeal No. 167/169 Leornard Aniseth v R 1963 EA P. 206.

I am of the view that the inconsistences as to how much money was collected and given to A2. Its source, the number of times negotiations were carried out with A2 and the parties involved were in my opinion grave and no reasonable tribunal directing itself on the evidence and the law sould convict on the testimonies of the prosecution witnesses.

. . . . . . . . . . . . . /30

. There ./ere some lies told by the prosecution witnesses. Therefore great doubts exist whether Shs. 1.5 million was given to A2. in the presence of A1 and others as a ransom for the release of Kamulindwa P. W.2 from Prison. . In the.premises this doubt ought to be resolved in favour of the accused persons. I have been unable to find that the arrest of P. W.2 was unlawful and that the motive of the taking away of Kamulindwa was to secure a ransom.

. The learned counsel appearing for the prosecution submitted that the accused persons be found guilty of a minor cognate offence of demanding money with menaces contrary to section 279 of the Jenal Code. He continued that there was a demand by A1. A2 and ² others and that the menaces were subjected to P. W.3 and F. W.4 by A1 and A2.

The learned counsels appearing for the accused persons submitted that the charge of demanding money with menaces could not be sustained against their clients.

Under section ⁸⁶ of the Trial on Indictment decree (Decree 26 of 1971) When a person is charged with an offence and facts are proved which reduce it to ^a minor cognate offence he may be convicted of the monor offence although he was not charged with it.

Mpanda vs Republic 196? EA at P. 29^ is an authority as to what amounts to a minor cognate offence. When considering section 181 of the • Tanganyika Criminal procedure Code Cap ²⁰ which is some how similar to section 86 of the TID. In that court the appellant together with others charged of' major ofience of obstructing police officers in the due execution of their duties contrary to section 2A3 (b) of the Penal Code. The- trial Magistrate found the ay² . T.lant not guilty of the offence char.cec but ccnvic^eC of th< minor offence of Assault'occassioning Actual Bodily harm. On appeal it was considered whether the Magistrate had power

......................./51

to substitute a conviction of the lesser offence and whether that offence must be cognate with the major offence charged. The appeal was allowed since the court was of the view that Assault occassior.ing Actual bodily harm was not a minor and cognate offence of obstructing the police in due execution of its duties.

The nationale to be deduced from the judgment in Mpanda's case is that an offence is minor to another if the punishment prescribed for the offence is minor to the punishment of the other offence. The offence with which the section can apply must both be minor and cognate. And that the decision to convict on minor and cognate offences is discretionary. The test is whether the accused is said to have reasonably fair opportunity of making a defence the alternative charge. The accused should not be taken by suprise by having to defend himself for offences of which he had no knowledge.

The elements therefore of convicting under minor and cognate offence as 5; envisaged by this court is that (a) The two offences must have a common origin (b) The alternate offence must be minor (c) The accused must have been given enough chance to plead to the alternative charge.

In the instant case Kidnapping or detaining with intent to procure ^a ransom contrary to section ²³⁵ (1) ^c of the ^kenai Code and ■- Demanding money with menaces do not have a common origin, I concede however\* that Demanding money with menaces is a lesser offence where am accused is convicted of the offence could be sentenced to the maximum of ⁵ years imprisonemt whereas Kidnapping or detaining with intent -to prociure a ransom the convict is liable to suffer death. Assuming that I was milstaken in holding that the two offences did not have a common origin I' would still not convict A\*' & A2 of Demanding money with menaces because the accused persons had not been given an opportunity to say something about the alternative charge. In the light of what has been explained above therefore it is not necessary to consider what

../52

what amounts to demanding money with menaces. The ingredients of that offence are well laid down in Raymond vs R. 1961 EA F. 320 at Page 323.

ジラ

The sum total of all that have transpired above is that the prosecution has failed to prove beyond reasonable doubt that A1 and A2 kidnapped and detained Kamulindwa with a view to procure a ransom. Therefore in agreement with the unanimous opinion of the state that the gentlemen assessors I find that A1 and A2 are not guilty on both counts of kidnapping and detaining with intent to procure a ransom contrary to section 235 (7) c of the Fenal Code and I acquit them of the % offences forthwith.

I do however disagree with the gentlemen assessors that the accused persons be found guilty of Demanding money with menaces contrary to sectio. 279 of the Penal Code Act as a minor cognate offence. It would appear to me/ the gentlemen assessors did not condider my summing up notes or else they should not have reacted as they did.

CREEA: The accused persons were released on CASH BAIL. I order that their deposit be refunded to them.

> ( I. MUKANZA, ) $J U D G E$ 20/11/1991.

20/11/1991: Both accused persons present.

Mr. Bakuza for A2 present.

¹⁴r. Kagaba for A1 present.

Mr. Bireije Resident Senior State Attorney holding brief for Mr. Luyombo Kalule present.

1st Assessor: Mr. Rwobwemi present. Court: Judgment is read and signed.

( I. MUKANZA )' J U D G E 20/11/1991.

Court: All cash bail deposited in this court must be returned to the accused persons plus any document taken from them for the purpose of releasing the accused persons on bail.

> $\mathcal{M} = \mathcal{M} = \mathcal{M}$ ( I. MUKANZA ) J U D G E $20/11/1991.$