Wakilii

Uganda v Nansubuga & 2 Others (Session Case 9 of 2023)

High Court · [2023] UGHCICD 6 · 2023 Charges Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Confirmation of charges hearing before the High Court International Crimes Division
Decision
All charges dismissed at confirmation stage. Accused not put to trial. Matter may be brought again for fresh pre-trial hearing on new evidence.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court International Crimes Division declined to confirm four counts of terrorism-related offences against three accused persons for want of sufficient evidence to establish substantial grounds to believe they committed the crimes charged. Applying the ICC standard of substantial grounds to believe under Rome Statute Article 61(7), the court found no evidence proving Bukenya and Mutumba were ADF members, no proof the accused belonged to ADF, and insufficient evidence to link the keeping of clothing or transmission of money to terrorist activities. All charges were dismissed without prejudice to fresh pre-trial proceedings on better evidence.

Outcome

All charges dismissed at confirmation stage. Accused not put to trial. Matter may be brought again for fresh pre-trial hearing on new evidence.

Facts

The Director of Public Prosecutions indicted three accused persons for belonging to the ADF, a listed terrorist organisation, and for aiding and abetting terrorism. A1 was accused of conveying information and mobile money between her son Bukenya and Kayongo, and of keeping military clothing. A2 and A3 were accused of communicating with alleged ADF members. A3 was accused of keeping clothes for onward transfer to ADF. The prosecution's case rested on witness statements from family members, search certificates, call data records, mobile money statements, and exhibits recovered from searches of the accused's homes in October 2021, including military uniform, exercise books with notes on military training, and clothing. A1 stated her son Bukenya was working as a government detective and asked her to trace Mutumba's family. She delivered news to Kayongo that his son Mutumba was alive and facilitated contact. A3 stated Bukenya told her the clothes were for Muslims. The prosecution did not adduce evidence proving Bukenya or Mutumba were members of the ADF.

Issues

  1. Whether the evidence adduced establishes substantial grounds to believe that the accused persons belong to or profess to belong to the ADF, a terrorist organisation listed under the Anti-Terrorism Act 2002.
  2. Whether the evidence adduced establishes substantial grounds to believe that A1 aided and abetted terrorism by conveying information and mobile money to Kayongo for use in connection with terrorism.
  3. Whether the evidence adduced establishes substantial grounds to believe that A1 and A3 aided and abetted terrorism by keeping clothes for onward transfer to the ADF.
  4. What standard of proof applies at a confirmation of charges hearing in the High Court International Crimes Division.

Orders

  • All counts in the indictment dismissed for want of sufficient evidence to establish substantial grounds to believe that the accused committed the crimes charged.
  • The prosecution should find better evidence and then produce the accused for fresh pre-trial proceedings.

Rules and key headnotes

Confirmation of Charges — Standard of Proof — Substantial Grounds to Believe
In a confirmation of charges hearing in the High Court International Crimes Division, where the ICD Rules and High Court (International Crimes Division) Practice Directions 2011 do not stipulate a standard of proof for pre-trial hearings, the court applies the ICC standard of substantial grounds to believe that the accused committed the crimes charged, as provided in Article 61(7) of the Rome Statute, Uganda having domesticated the Rome Statute and established the ICD as a complementarity court to the ICC.
Confirmation of Charges — Evidentiary Standard — Substantial Grounds to Believe Defined
The evidentiary standard of substantial grounds to believe is a lower standard than that required at trial and is met as soon as the prosecution offers concrete and tangible proof demonstrating a clear line of reasoning underpinning the specific allegations. It is also a lesser standard than the prima facie case standard used to determine whether an accused person should offer a defence at the closure of the prosecution's case.
Terrorism — Belonging to a Terrorist Organisation — Elements of the Offence
To prove the offence of belonging to a terrorist organisation under Section 11(1)(a) of the Anti-Terrorism Act 2002, the prosecution must establish: (i) the existence of a terrorist organisation; (ii) that the terrorist organisation is listed in the Second Schedule to the Act; and (iii) that the accused person belongs or professes to belong to a terrorist organisation so listed.
Terrorism Prosecutions — Proof of Membership — Insufficiency of Communication with Alleged Members
Evidence that accused persons communicated with persons alleged to be members of a terrorist organisation is insufficient to establish substantial grounds to believe the accused belong to that organisation where: (a) no evidence is adduced proving that those persons were in fact members of the terrorist organisation; and (b) the communication is otherwise explainable by lawful familial or social relationships.
Terrorism — Aiding and Abetting Terrorism — Conveying Information to Family Members
Conveying information that a family member is alive, and facilitating contact between family members, is not an act of aiding or abetting terrorism on its own under Section 8 of the Anti-Terrorism Act 2002. There must be other evidence showing that the person to whom the information relates was engaged in terrorist activities or was a member of a terrorist organisation.
Charge and Caution Statements — Caution Under Wrong Provision — Inadmissibility
Where accused persons are cautioned and charged under a provision of the Anti-Terrorism Act different from the provisions under which they are indicted and brought to court, the court cannot rely on their charge and caution statements, particularly where those statements are not confessions and the accused denied the charges as cautioned.
Terrorism — Dismissal at Confirmation Stage — Effect and Remedy
A dismissal of charges at the confirmation stage for failing to meet the pre-trial standard of substantial grounds to believe is not an acquittal. The Director of Public Prosecutions retains the right to produce the accused for fresh pre-trial proceedings on newly obtained or better evidence.

Legislation cited (5)

Cases cited (8)

  • Uganda v Miria Rwigambwa (Session Case No. 6 of 2021)
  • Uganda v Nsungwa Rose Karamagi (Session Case No. 7 of 2021)
  • Soering v. United Kingdom, Application No. 14038/88 (7th July 1987)
  • The Prosecutor Vs Thomas Lubanga Dyilo, ICC-01/04-01/06-803-tEN 14-05-2007
  • Mamatkulov and Askarov v. Turkey, of 4th February 2005, (Applications Nos. 46827/99 and 46951/99)
  • ICC-01/14-01/21, 9th December 2021 (Mahamat Said Abdel Kani)
  • Uganda v Hussein Hassan Agade and 12 Others (Criminal Session No. 1 of 2010)
  • Theodore Ssekikubo and Others v Attorney General and 4 Others (Constitutional Court Appeal No. 1 of 2015)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Uganda v Nansubuga & 2 Others (Session Case 9 of 2023) [2023] UGHCICD 6 (22 January 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.