Sheikh Kamoga wants his terrorism conviction quashed
Leader of Tabliq sect in Uganda was last year convicted of terrorism charges alongside 13 others but they say the conviction was in error
JUSTICE | Jailed leader of the Tabliq Sect in Uganda Muhammad Kamoga has asked the Court of Appeal to quash his terrorism conviction, a year after he was sentenced to life imprisonment.
Sheikh Kamoga has appealed the August 22, 2017 decision of the International Crimes Division (ICD) of the High Court alongside his brother Sheikh Murta Mudde Bukenya, and other Tabliq leaders; Sheikh Siraje Kawooya and Sheikh Fahad Kalungi.
The three were found them guilty of terrorism by judges Ezekiel Muhanguzi, Percy Tuhaise and Jane Kiggundu and sentenced to spend the rest of their lives in prison.
In the same judgment, Yusuf Kakande and Abdulsalam Sekayanja were handed 30-year jail sentences.
In rationalizing the penalty, Justice Muhaguzi, who was been promoted to the Court of Appeal in the aftermath of the judgment, said Kamoga, Kawooya, Bukenya and Kalungi were handed a severe sentence because they were leaders who should have led by example.
He said Kakande and Sekayanja walked off with a lesser sentence because they were just followers.
Nevertheless, the convicts, in their joint Memorandum of Appeal, accuse the ICD judges of erring in law and fact by “relying on uncorroborated circumstantial evidence of witnesses,” thus arriving at a wrong decision.
“The learned trial Justices erred in law and fact by convicting the Appellants for the offence of terrorism without compelling substantiated and corroborated evidence to support alleged attacks and threats to members of “Jamiya Daawa Asalafiya” Muslim sect,” the Memorandum of Appeal drafted by Muwema and Company Advocates and Solicitors, reads in part.
In the judgment, which is now under contest, Justice Muhanguzi and his colleagues absolved all the six of the charges of murder and attempted murder against all the accused explaining that prosecution led by Lino Anguzu, a Principal State Attorney had failed to prove such prove “beyond reasonable doubt.”
From murder to terrorism
The state had accused the six and others of murdering sheikhs Ibrahim Hassan Kirya and Mustapha Bahiga. They were also further accused of attempting to murder Prince Kassim Nakibinge, the titular head of the Muslim community in Uganda, Sheikhs Haruna Jjemba, Najib Ssonko and Mahmood Kibaate.
Having torn to shreds the charges of murder and attempted murder, the judges turned their focus to terrorism, which was the ultimate charge to many. For a successful terrorism conviction, prosecution had the burden of proving beyond reasonable doubt four ingredients; actual murder, attempted murder, threatened murder and maiming or attack on a person or group of persons in a public or private institution.
Justice Tuhaise, who read this part of the judgment, said indeed prosecution had failed to prove actual murder and attempted murder. On threatened murder, Tuhaise ruled that prosecution had proved that Kawooya, Kamoga, Bukenya, Kalungi, Kakande and Sekayanja had threatened to kill various people for political, social or economic motive.
As for threatened murder, Justice Tuhaise cited the evidence of prosecution witness number 22(whose names were not named for security reasons).
The witness told court that at the height of tensions between the warring factions at Nakasero mosque, Kamoga while preaching at William Street mosque, he thumped his chest and said, “Even if it means killing them, I will kill them. Those men are joking, they have never killed but for me I can; even if it is in broad daylight.”
Prosecution witness number 29 was another key witness here. He testified that Kamoga, during various preaching sessions, uttered several threats. He quoted Kamoga as having said among other things that, “Kirya is joking. He can’t survive. Those people are joking; we have guns…”
This particular witness also said that during a meeting hosted at Kawooya’s house on Gayaza road, Kamoga said, “Bahiga is like a snake in a saucepan. If you don’t kill it, you can’t eat. Hassan Kirya is a government spy. In the days of Prophet Muhammad, they would kill those who frustrate Muslims.”
At another meeting, the same witness testified, Kamoga said, “In order to take leadership of this country, we need to get rid of three people; Bahiga, a police spy, Kirya, a CMI [Chieftaincy of Military Intelligence] spy, and Muhammad Kiggundu.”
Though the defence had prayed that evidence should be dismissed on grounds that no audio or video recordings or minutes of the said meetings were tendered in court, the judges rejected that line of argument.
Tuhaise said that oral evidence is acceptable since it is direct and it means that the witness is saying something that he or she heard or saw – which means it is not hearsay.
But now in a bid to regain their freedom, the convicts accuse the High Court judges of convicting for the offence of terrorism on the basis of the evidence of fliers which as of itself, did not discharge the prosecution of proof for the offence thereby arriving at the wrong decision.
“The Learned trial justices erred in law and fact by convicting the Appellants for the offence of terrorism basing on hearsay evidence relating to the wrangles in the Moslem community which evidence was lacking in any probative value to prove the evidence or at all,” they insist in the appeal, which is yet to be given a date for hearing.
Besides the convictions, they also attack the sentences. Particularly, Kamoga, Bukenya, Kawooya and Kalungi take exception to the life imprisonment they are currently serving, on grounds that it is “severe, harsh and unconscionable principle of their leadership status in their Muslim sect.”
Kakande and Sekayanja, on their part, naturally attack the 30 years in prison punishment handed to them by the ICD,on grounds that it was based on “a wrong, severe, harsh, illegal and unconscionable principle of being followers of their leaders.”
“The learned trial Justices erred in law and fact by failing to put into consideration the mitigating factors of the appellants while sentencing them thus arriving at a wrong decision” they say, adding that, “The appellants propose to ask Court for orders that the appeal be allowed by setting aside the judgment and sentence issued by the learned trial justices in respect of the conviction of the appellants on the offence Terrorism.”