Tumukunde: Why I should walk free

Accused RO 111 Brig  Henry Tumukunde is inching towards judgment day.

Last Wednesday, at 9am, Tumukunde and his lawyers – MacDosman Kabega, Emmanuel Twarebireho and Oscar Kambona – walked  into the General Court Martial in Makindye chaired by Brig  Fred Tolit.

 

Before them was a panel of eight men whom they had to convince that the prosecution’s final submissions could not prove the charge of spreading harmful propaganda against the former military intelligence chief. At 9:10am, the chairman opened the proceedings. Our source recorded the proceedings. Below are excerpts:-

Court Clerk: Criminal Court No. 38 of 2005 (Tumukunde enters the metallic dock).

Tolit: This case is for final submission by the defense. Nobody should say we’re slow, the speed is too good; the case is on course and justice will prevail. (To Tumukunde) Good morning Brig  Tumukunde, welcome to court.

Tumukunde: Good morning sir.
Wayirugala: Mr Chairman and honorable members, for prosecution, I’m Maj Fred Wairugala assisted by my fellow learned Captain Fred.

Kabega: For the defence, I’m MacDosman Kabega appearing together with Emmanuel Twarebireho and Oscar Kambona ready with a reply to the prosecution but before we commence, allow me to make some opening remarks.
Tolit: Go on.

Kabega: The accused is charged with count one of conduct prejudicial to good order and discipline contrary to section 178 (1), (2) and (5) of the UPDF Act. I want to take you through the particulars which form the gist of the offence. RO 111 Brig  Henry Tumukunde on or about the 5th of May 2005 in Kampala without permission from appropriate authorities appeared on Radio One talk show hosted by David Mushabe contrary to good order, discipline and code of conduct.

 

The charge sheet as laid has particular ingredients to be proven. However, I wish to add that any slightest doubt must be resolved in favour of the accused. One of the ingredients is that prosecution has to place the accused at the scene of the crime - at the premises of Radio One. The issue is: Was he there? I submit that this ingredient was never proven at all because there is no single witness that was brought to prove that Brig  Tumukunde was at Radio One.

 

The would-be witness is Mushabe but he never testified. It was prosecution’s task to produce a witness from this radio who would prove that the accused was there and was interviewed.

 

Secondly, count one is bad in law especially the particulars of the offence. UPDF regulations 2(k) and (f) themselves are creating offences and there is no other choice but to strike out the count because it is defective.  In Uganda versus Rhino Ochen, the accused was charged with practising witchcraft which caused impotence and illness to somebody and court came out to pronounce that the charges were duplex.

 

Tolit: How do you relate the issue of witchcraft     to this one?
Kabega: The import here is putting more than one offense in one count and this is what prosecution has done in the case before you instead of making an election. The next point to highlight is that prosecution in this case made an assault on the particulars of the offence.
Tolit: That is a serious one.

Kabega: The Constitution provides for the right of a speedy and fair public hearing before a competent court or tribunal. The emphasis here is “speedy”. These proceedings started way back in May 2005. The prosecution was only able to adduce evidence after two years after the accused was indicted. That was in January 2007 and since that time, it produced only four witnesses and since then it is now eight years…

 

Keeping quiet must not be taken as an admission of guilt as that is his constitutional right and the State must go ahead and adduce evidence to prove its case beyond any reasonable doubt. Article 28(3) (a) of the Constitution stipulates that every person who is charged with a criminal offence shall be presumed to be innocent until proven guilty or until the person has pleaded guilty. The burden still remains with prosecution to produce evidence to discharge that ingredient.

 

With these few remarks, it is my humble prayer that we have placed sufficient material to enable court come to a fair and just verdict. I pray that you be pleased to acquit the accused. Let me leave my colleague Kambona to make remarks on count two.

 

Kambona: Mr Chairman and honorable members, count two is spreading harmful propaganda contrary to section 178(1) and (2) (c) of the UPDF Act. By law, spreading harmful propaganda means making oral or written statements ill of the defence forces or of government which is not constructive criticism. It means also that an individual can criticize the defence forces if that criticism is constructive. Criticism is not an offence as long as it is constructive.

 

Two, the accused must have made the alleged statements and prosecution has not produced evidence to prove that the accused made them. The alleged interview was over an hour, a lot of things were said in that tape but they picked one statement.

Tolit: A lot of things were said by whom?
Kambona: They have not said the accused made them but they are not bad statements. We want to reiterate our submission that the offence of spreading harmful propaganda is defective. I now call my colleague Twarebireho to present our submission in full.

Twarebireho: Hon. Chairman and members, the prosecution adduced the evidence of a transcribed document allegedly obtained from the tape recorder that was allegedly made by PW2. It is the uncontroverted evidence of PW1 that he could not tell whether the tape was recorded or not. A one David Mushabe, who is alleged to have hosted the talkshow, was never called to ascertain whether he had actually hosted the accused on the alleged talk show.

 

The voice of the person on the tape recorder was not subjected to identification by an expert witness to confirm whether it was the voice of the accused. There was no evidence that the accused was seen at or near Radio One on or about the 5th of May 2005. Each ingredient which constitutes an essential element of the offence charged must be proven beyond reasonable doubt.

 

It is our submission that the prosecution has failed to discharge their burden of proving beyond reasonable doubt that the accused committed the alleged offence and therefore, he should be acquitted forthwith. Without prejudice to the foregoing, even if this honourable court was to find that the prosecution had discharged their burden of proving beyond reasonable doubt that the accused was the one and the same person on the recorded tape, this court should take into account the ensuing submissions below if they are to arrive at a just decision.

 

Any orders breached?

First of all it is not shown anywhere that the accused had to seek permission from anybody although in the particulars of the offence, there is reference to the code of conduct. Nor is there any evidence that he never sought permission. The seventh schedule to the Act provides for the code of conduct for the defence forces and there is no mention of the requirement that a Member of Parliament should seek permission to speak on any matter that may affect him or the people he represents.

 

A closer scrutiny of subsection (1) and (2) gives an impression that every officer of the forces is governed by regulations, orders or instructions published for which that person belongs, is attached or seconded. The accused was seconded to represent the army in Parliament, in line with the provisions of subsection (1) and (2), the presumption would be that he would be furnished with such published regulations or instructions not only those that govern army officers generally but those specific to one representing the army to Parliament.

 

Suffice to add that such regulations, orders and or instructions would be in addition to but not in derogation with the Constitution lest they become null and void to the extent of their inconsistency. The prosecution adduced no such evidence and, therefore, the import of the requirement of such permission by a Member of Parliament should be disregarded.

 

Subsection (6) provides that nothing in the two subsections shall affect the generality of subsections (1) and (2). Even if that was the case, the two sections without the clear definition of what is such conduct that is prejudicial to good discipline and order remains ambiguous and any ambiguity should be decided in favour of an accused.

 

In trying to prove that the accused committed the offence of conduct prejudicial to the good order and discipline of the forces, the prosecution quoted rule 2(j) of the defence forces code of conduct which is to the effect that a member of the forces shall not make public statements to journalists without proper authorization. The Press and Journalist Act Cap 105 under section 1 (h) define a journalist as a person who is enrolled as a journalist under this Act.

 

It is clear that Mushabe, the alleged person to have hosted the accused, has never been a journalist as he is not enrolled as such and, therefore the above regulation would not apply to the accused. Nobody called Mushabe to testify that he is a journalist. In the absence of such evidence, there is no proof the accused talked to a journalist. Rule 2(1) provides that a member of the defence forces shall not give public speeches or broadcast public statements without permission from the appropriate authority.

 

PW 4 Maj. Felix Kulayigye informed court then that the accused needed to have had the permission of the appropriate authority before going on air. That an army MP representative represents a special group to Parliament. He further told court that the election of army representatives in Parliament was conducted by the Electoral Commission in accordance with the Parliamentary Elections Act.

 

He argued that MPs take an oath of office before taking their seats in Parliament. The implication here is that army representatives in Parliament are like any other MPs, and they are therefore not delegates but representatives. He did not tell court who was to issue permission. He was also not categorical on whether as such MP and having taken the oath of Parliament would require permission to talk unlike other MPs.

Tolit: (Interjects) I hope I’m not breaking any law by giving you (defence lawyers) mineral water.
Twarebireho: Much obliged.
Tolit: (To Tumukunde) You can take my water, General?
Tumukunde: Yes, why not?

Twarebireho: Prosecution quotes the evidence of PW4 and rightly concludes that there were the existent rules and regulations as per the code of conduct barring any army officer from making any statements to journalists. The existence of such regulations is not in dispute as prosecution would want portray it. The defence’s contention is that the prosecution should have adduced evidence to prove the following: Who was responsible for giving authorization?

 

The mode of authorization; mode of application for such permission and whether it should be oral or written and what should happen if one makes public statements without that authorization. Counsel for the state contended that it is immaterial whether what was talked was injurious to the forces or not. With respect, we beg to disagree with Counsel’s argument. The offence charged is conduct prejudicial to good order and discipline.

 

How can that be immaterial when it is the main reason of creating the offence? The section was created to have discipline in the defence forces. The prosecution ought to have brought evidence to show that the conduct was prejudicial to good order and discipline, which was not done.

 

The only evidence was that of PW4 which was only to the effect that there are regulations in place, it did not go ahead to show that what was done if at all it was done by the accused – was prejudicial to good order and discipline. Ingredients of an offence are not proven in the alternative but must all be proven beyond reasonable doubt.

 

The evidence of PW4 was of no evidential value since it did nothing to prove the above ingredients, apart from reaffirming to this court the existence of the code of conduct, a matter that was not in dispute.

 

Secondly, the code of conduct prohibits army officers from making statements but there is no sanction for the breach of the same. If it was the legislature’s intention that the breach of the code of conduct should constitute an offence, it should have clearly provided for the element of prohibition, contravention and the sanction. The code of conduct merely prohibits an army officer from making public statements without expressly providing the sanction for contravening the same.…

 

From the foregoing, the code of conduct as erroneously interpreted by the prosecution seeks to limit the accused’s constitutional private right of freedom of speech as enshrined under Article 28 of the Constitution and the ambiguity in interpreting the code of conduct should be in favour of the accused.

 

It is trite law that any competent court seized with jurisdiction to handle a trial such as is the case with this General Court Martial, has a duty to properly and judiciously evaluate all the evidence adduced during the trial in order to enable it arrive at a just and fair decision. This inalienable right of an accused person emanates from one of the  cardinal constitutional principles of fair trial enshrined in Article 28 of the Constitution.

 

What makes it even more incumbent on this court, is the fact that the right to a fair hearing is one of the non-derogable rights under Article 44 of the Constitution. Any court that fails to properly evaluate the evidence on record will inevitably arrive at an unjust and wrong decision that will no doubt contravene the provisions of Article 28 but the non-derogable rights of article 44.

 

The tape recorder

The hallmark of the prosecution case stems from the alleged recorded talk show allegedly hosted by a one Mushabe on Radio One on or about 5th May 2005 where the accused is said to have committed the alleged offences.

 

It was the evidence of the Prosecution Witness 1 (PW1), that he did the transcription of the tape in early June, almost a year after the alleged talk show was held, some words on the tape were not clear, that he could not tell as to whether the programme was aired or not and that some pages and some words were missing.

 

The second Prosecution Witness (PW2), an Intelligence Officer working with the Internal Security Organ (ISO) who was responsible for recording the alleged talk show, was produced in court and even produced the cassette that he used to record the talk show.

 

Issues arising

The following issues arise:-  Who placed the accused at the scene on or about the 5th May 2005; what is the explanation for the missing gaps on PW2’s cassette recordings? What barred the prosecution from accessing Radio One’s recording so as to have it compared against that of PW2’s recording? What is the effect of the missing bits as weighed against the whole evidence?

 

The prosecution failed to provide any explanation for the above anomalies and it is our humble submission that there would be three plausible explanations for such an occurrence.

 

Accused not at the scene of crime

In the submissions, the prosecution maintains that the evidence of PW2 who is alleged to have recorded the programme had placed the accused at the crime scene. With due respect, just because the voice on the tape recorder mentioned that it was at Radio One or PW1 relayed what was on the alleged tape in no way places the accused at the scene, as the prosecution would want this honourable court to believe.

 

The prosecution needed to prove that the person on the tape was the accused, which could have been proven either by an expert by comparing the voice on the tape and that of the accused or by any other extrinsic evidence that put the accused at the scene of crime on the alleged 5th May 2005.

 

Secondly, in light with advancement in technology, for instance the voice changer software, anyone can be made to sound as anybody. For example the GritTec’s Pitch Shift technology is used for pitch scale modification (changing the harmonics structure) of speech and audio signals. Pitch shift technology can be effectively used for changing initial music or voice into another music or voice (audio-speech effect-voice changer).

 

In the absence of an expert, this honourable prosecution has not proven that it was not anybody being introduced as the accused, made to sound as the accused so as to pin him. Just because there was the mention of the accused’s name, rank, on the tape does not confirm anything.

 

The failure by the prosecution to adduce evidence placing the accused at the scene or an expert proving that it was the accused on the tape works in the accused’s favour and, therefore, this honourable court should be pleased to dismiss the charges against the accused with the contempt they deserve.

 

Missing gaps on the cassette

PW2 intentionally omitted some parts of the alleged talk well knowing that the deleted bits constituted what were constructive criticism, which is a defence under the Act, so as to pin the accused. He was fully aware that a full record of the whole alleged talk show would not sustain any charges in any court of competent jurisdiction…

 

No radio recording

Prosecution deliberately refused to present Radio One’s recoding because they knew it would exonerate the accused. The missing bits on the tape leave this honourable court with incomplete evidence. The court cannot readily contextualize the evidence in total without having listened to the whole tape. It cannot, therefore, proceed on incomplete evidence.

 

This omission of exhibiting Radio One’s tape denied this honourable court an opportunity to listen to that tape and arrive at a just decision rather than relying on PW2 who is an interested party and whose neutrality, whether actual or perceived, is an issue in this case. As to what exactly happened to that recorded tape, the accused and any of us shall never know with certainty apart from the fact that such lacunas in the evidence should lead to the acquittal of the accused.

 

While responding to the defence’s contention of not having the tape admitted in evidence, the prosecution argues that the defence should not have objected to the admissibility of the tape at the point of no case to answer when they failed to object to it when tendered into court by PW2. First, for the record, it is clear from the proceedings that the defense objected to the admission of the tape.

 

Secondly, it is our considered opinion that even if that was the case, the failure to object to a tendering of an exhibit by the accused does not bar him from raising or pointing out the anomalies of the same. Even if this court was to hold that the tape was admissible, its credibility and reliability is still in issue.

 

The tape recording should never have been admitted in the first place given the issues raised above and we believe that the case of Makula Global International v Cardinal Nsubuga [1982] HCB 11, would be very instructive in this matter. It was held, inter alia, that once an illegality has been drawn to the attention of the court, [notwithstanding at what point of the case- emphasis ours] court has no option but to rectify the illegality.

 

Similarly this honourable court should disregard this tape as being of no evidential value since it offends the cardinal rule of evidence...

On the issue of the tape not being clear, the prosecution contends that since the court heard the tape and, therefore, it was clear, that is all that matters. If the prosecution’s assertion is to be taken on its face, it sets a very dangerous precedent where the court in this case is seen as the witness and the judge at the same time. It is the very evidence of PW1 who the prosecution heavily relies on that told this honourable court that some words on the tape were not clear.

 

The issue to be determined is who should this court believe? Should it be the assertion by the prosecution that court listened to the tape and it was clear in the absence of any such indication from the court or the evidence of PW1? It is important to note that there was no such indication from the court as regards the clarity of the tape. A one Mushabe is alleged to have interviewed the accused on Radio One where he is alleged to have committed the offences charged.

 

The prosecution, in their written submissions, argue that they expunged Mushabe as their witness because he declined to give evidence against the accused because they exchanged cows. Mr Mushabe declined to testify in his own right and without any intention or influence of the accused. Unless the prosecution is rewriting their own rules of evidence which is unacceptable, because the law in this country is very clear on who is mandated to make law and the processes to be followed.

 

The Evidence Act provides for both competent and compellable witnesses and the exceptions thereunder. There is no mention of exchange of cows as an exception when it comes to testifying against an accused. The prosecution did not adduce evidence of the moderator of the programme. He is the only person who would have told court that the accused attended the programme or not.

 

Mushabe’s name appears in the particulars of the offence in count one and his evidence was, therefore, very crucial and the only basis upon which the court could ascertain whether the accused was the person on the programme or not. The prosecution had to prove that the statements made on the 5th May 2005 at Radio One station were made by the accused on a programme hosted by Mushabe.

 

This was not done and this was a grave omission. This is not a case that is based on circumstantial evidence and as such, the prosecution must prove by direct evidence that the accused actually committed the offences with which he is charged. The prosecution has argued that the reason why Mushabe did not give evidence was that he knew that his evidence would incriminate the accused.

 

That had he known that his evidence would exculpate the accused, he would have readily testified. With due respect to learned Counsel’s argument, we feel that that is an unfortunate conclusion. The accused cannot be convicted on guesswork but facts and/or acts that contravene the law. Mushabe’s mind and, therefore, his conscience entirely belongs to him and nobody has a window to see through them and interpret what he had in mind.

 

Mushabe’s silence cannot be extended to the accused. Mushabe was in court as a prosecution witness. Mr Chairman and members of the prosecution chose to ignore him and released him. The only logical conclusion is that his evidence which was within the knowledge of the prosecution could easily have destroyed their case and that is why they chose to ignore it and not vice versa.

 

The prosecution having released Mushabe, could still have called somebody else from Radio One to testify but this was not done either. The prosecution ought to have obtained his evidence or anybody else from Radio One and based on what he would have said, decide the weight that evidence should have been accorded.

 

This error of judgments by the Prosecution robbed them of a chance of proving whether the accused was indeed the one and the same on the alleged talk show or even whether it was the one and the same Mushabe. Accordingly, the prosecution failed to place the accused on the scene of crime.

 

Real offence

The prosecution in trying to justify that the accused committed the offence of harmful propaganda specifically picked the following text and we quote;

 

“I am sure you know how many people call themselves very pro the pesident, and I am sure even the forces, people who have got other sympathy or levels of patronage, so you would not want to leave such a person hovering on top of the Force and I do not know how much time one needs in power really to make a difference”.

 

It should be noted from the onset that the prosecution picked bits and pieces of the alleged utterances, thereby unsuccessfully quoting them out of context. The evidence is of an alleged talk show or interview which should have taken in its context as a whole if the prosecution was to sustain the preferred charges. It is very unfortunate for the prosecution to selectively pick out words or statements from what was allegedly said by the accused to defeat the ends of justice.

 

Although the Act does not define what the offence of propaganda is, it gives instances of what would constitute the offence of spreading harmful propaganda under section 137 (a) - (d). The accused was specifically charged under section 137 2 (c) for spreading harmful propaganda by making oral or written statements ill of the army or the government not constituting constructive criticism.

 

Black’s Law Dictionary defines propaganda as the systematic dissemination of doctrine, rumour or selected information to promote or injure a particular doctrine, view or cause. It also defines harm as injury, loss, damage, material or tangible
detriment.

Tolit: (To Court Registrar) Get me a copy of that Dictionary. (A copy is brought).

Twarebireho: In the United States for instance, when dealing with the offence of propaganda, there must be a causal link between the offence and the target audience. In the present case, the prosecution needed to not only prove that the alleged statements were attributed to the accused but also were harmful to the government or the army.

 

Even if this honourable court rejected the United States of America practice as being merely persuasive and not binding, recourse should be had to the cardinal criminal law principle that the wronged party should be identifiable. In the present case, the prosecution needed to prove how the alleged propaganda affected in an ill manner both the army and the government.

 

The UPDF Act does not define what constitutes  the army although the Constitution of this country may be instructive of  what constitutes the army under Article 208 of the Constitution. By comparison, according to the Oxford English Dictionary in American English, government refers to the larger system by which any State is organized. What we do not have is what is meant by government in Uganda although by and large we have learnt to categorize it by the three arms namely, the executive, judiciary and the legislature which are enshrined in the Constitution.

 

It is a cardinal principle in criminal law that when drawing up a charge sheet, the particulars of the offence should be such as to enable the accused to know every act or omission which is intended to be proven against him or her, a matter that is even canvassed in Regulation 145 (b) of the Uganda People’s Defence Forces (Rules of Procedure) Regulations 81-307, we take issue with the way the Prosecution drafted the particulars of the offences alleged.

 

In this present case, the Prosecution needed to lead evidence to show which specific arm of government was the target and as such harmed by the alleged harmful propaganda, whether it was all the arms of government or any two. As such, the accused would know better how to defend himself.

 

Retaining an omnibus charge as against the entire government or the army generally not only prejudices the accused in defending his case since it is not clear who he allegedly wronged but also renders the charge defective and,  therefore, this court cannot proceed on the same defective charge to convict the accused.

 

Furthermore, the prosecution ought to have adduced evidence to show what sections of the Army was prejudiced or the Army as a whole. Instead Counsel for the State states as follows; “Such utterances were very divisive and threatened the coherency of the defence forces. If listened to and taken seriously by members of the defence forces, they were likely to create divisions in the defence forces; It is our submission that the statements uttered by the accused were not in good faith and hence did not amount to constructive criticism.

 

“It goes without saying that the prosecution themselves were speculating and this court cannot rely on speculation in the absence of cogent evidence against the accused and, therefore it is left with no other option but to acquit the accused.

 

Language used

Anybody who scrutinizes the transcription notwithstanding who was responsible for the words thereon realizes that the language used was largely equivocal. For a case of spreading harmful propaganda, there needs to be the use of such an unequivocal words for it to amount to that offence of propaganda as defined by Black’s Law Dictionary above.

 

The transcription clearly has the person responsible continuously maintain that whatever is said are his personal views. The right to freedom of speech and right to one’s opinion need not be overemphasized in this case.

 

It was up to the prosecution to prove that the alleged statements of the accused exercising his right to an opinion but instead aimed at spreading harmful propaganda ill to the government or army, those statements not constituting the offence of harmful propaganda.

 

Exception to the offence

Under the Act, one cannot be charged with the offence of spreading harmful propaganda if the alleged oral or written statements amount to constructive criticism. The implication of the exception is that, it is a defence for anybody charged with spreading harmful propaganda under that section to plead constructive criticism of either the army or the government.

 

In the present case, even though the accused elected to keep quiet rather than be put to his defence, it is our contention that even if this court was to find that there is evidence that he is the one who made the alleged statements, it is his defence that what was allegedly said was constructive criticism of the two bodies envisaged under section 137 2 (c) viz, the government and the army. As such, the prosecution remains with the burden of proving that the said statements did not fall under the ambit of the exception.

 

What is constructive criticism?

The issue here is what constitutes constructive criticism; what is the yard stick that should be used to determine whether any oral or written account amounts to constructive criticism and what is the standard to be applied. In the absence of any evidence adduced by the prosecution to prove any of the above contentions, it is our considered opinion that, every case should be taken on its own facts because what constituted constructive criticism yesterday is different from what it may be today.

 

The burden is still on the prosecution since it is the one alleging that the accused spread harmful propaganda. The Prosecution has failed to lead evidence to show that the statements were not constructive criticism apart from expressing an opinion that the said words did not constitute good faith. This honourable court cannot decide a case based on the prosecution’s assertion from the Bar but on the adduced evidence...

 

Duality of office

The facts of this case are that the accused who is an army officer at the rank of Brigadier at the time he committed the alleged offence, was also a Member of Parliament representing the army.

 

The issue as to whether he had full rights as any other Member of Parliament or such rights were curtailed by virtue of being a representative of the army, was settled by JSC Kanyeihamba (as he then was) in Brig Tumukunde versus Attorney General SCCA 2006 where he held inter alia:

 

“…..Where it is clear that the constituencies of MPs are different when they join Parliament and are sworn in, they all, without exception become hononarable MPs with common tasks, rights, obligations, immunities and privileges….

 

The prosecution ought to have led evidence to show that in spite of the accused having been an MP with full rights, he appeared on the alleged talk show not as such but as an army officer, so as to fall under the ambit of the code of conduct.

 

Most importantly, some of the envisaged rights, tasks or even obligations of a Member of Parliament include the right of consulting with the people and the constitution is very clear on the power belonging to the people. In the circumstances, the accused as a representative of the people had full rights to engage the people on matters he felt affected them.

 

In this case if the accused felt there were issues to be addressed and went to where but to fora, the people the supreme law of the land clearly stipulates that power belongs to them, what justification would anybody have to take away that constitutional right from the accused as well as the people?

 

It is our submission that the trial of the accused on such a fundamental right of belonging to the people is a test of constitutionalism in this country.

 

This court should stand and be counted for upholding and protecting the Constitution and should be wary of setting a dangerous precedent that will see this country sink to the levels of past regimes that it has tirelessly fought to overcome. This shall be seen from the kind of judgment this honorable court shall pass and we believe it shall be none other but the acquittal of the accused.

 

Severity of the sentence

The gravity of the sentence that is to be imposed in case the accused is to be found guilty by this Court especially under section 137 2 (c) should have court exercise its finding of the guilt of the accused more cautiously especially given the recent holding in Tigo Versus Attorney General where it was held that life imprisonment means the natural life of a convict with or without remission. Given the severity of the offence, this honourable court should carefully weigh the evidence adduced before they can find the accused guilty

 

Conclusion

It is our submission that the prosecution has failed to prove both offences charged beyond reasonable doubt and as was held in the case of Basoga Patrick versus Uganda CA NO.42 OF 2002 (UNREPORTED) “ the accused does not bear the burden of proving his innocence.

 

He is not obliged to put up a defence. He may even decide to reserve his silence”. And as such, that being the case we pray that this honorable court acquits the accused of both counts.

 

Tolit: (Tumukunde whispers to Twarebireho). Brig  Tumukunde is there something you want to tell court?

Tumukunde: (salutes) I was reminding my lawyers that apart from what they have stated, I was also imprisoned for one and a half years without distinguishing whether the alleged utterances were made by me as an army officer or an MP. It is my belief that this court is competent especially if it is legally advised [by Judge Advocate]. We pray that this case be brought to an end expeditiously in a form of a dismissal.

 

Tolit: I thank Brig  Tumukunde for those brief remarks and a reply to the State’s final submission which may make this court to get a step towards ending this case. Prosecution, anything in reply, in re-rejoinder?
Wairugala: We have been served with the defense reply to our final submissions this morning. We need two weeks to make a rejoinder.
Tolit: (Consults with Judge Advocate at 12:45pm) Permission is granted and the case is adjourned to 28th February 2013 for a rejoinder from prosecution.

 

Source Observer