Gule v Uganda (Criminal Appeal 34 of 2019) [2024] UGSC 34 (13 June 2024)

' THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA. (Coram: Owiny-Dollo, CJ; Mwondha; Tibatemwa-Ekirikubinza; Tuhaise; Chibita; JSC) CRIMINAL APPEAL NO. 34 OF 2019 GULE SHEIK TWAHA o.sssssssssseesssseesseseessssee ses ensse APPELLANT VERSUS UGANDA vis sessssesesseeseeseeseeseeseeseeceeseeseeseeseeseeseeseeRESPONDENT (Appeal from the decision of the Court of Appeal of Uganda at before Musoke, Obura, and Muhanguzi, JA Kampala in Criminal Appeal No. 491 of 2014 delivered on 8" August, 2019). JUDGMENT OF THE COURT

This is the second appeal filed by the appellant Gule Sheikh Twaha following the dismissal of his first appeal by Court of Appeal.

Background

‘The background to this appeal is that on 7% August, 2006, five people namely; Oroto Tom Kennedy, Muganyizi Patrick Kateba, Gatale Claudian, Bagonza Herbert and Okiru Charles, were shot at Kobil Petrol Station Bugolobi, in Kampala District, and they died. It was the prosecution's case that Gule Sheik Twaha, the appellant was an employee of Security Group and had been deployed at the said petrol station. At the time of the incident, the appellant had been transferred to the head office though he was unhappy with the transfer. Before the transfer, the appellant had allegedly stolen Uganda Shillings 85,000/= from one of the pump attendants at his duty station and this had caused a lot of animosity

~* between him and the pump attendants. On the fateful day, in the evening

’ hours, the appellant returned at the petrol station, grabbed a gun from one of his colleagues who was on guard, shot dead the deceased persons named above who were working as security guards and pump attendants respectively. After the incident, the appellant disappeared, and though several telephone calls were made on his mobile phone, he refused to answer the calls. He was later tracked, arrested and charged accordingly Upon arrest, the appellant confessed to the charges in his charge and caution statement made before Inspector of Police, Kasangaki John, who testified at the trial as PW2. He was indicted of five

(5) Counts of Murder contrary to sections 188 and 189 of the Penal Code Act before the High

| Court sitting at Nakawa.

However, during the trial, the appellant retracted his confession when he alleged that the same had been obtained through torture. Following the retraction, the trial court conducted a trial within a trial and ruled that the confession was not obtained through coercion, Upon trial, the trial court found the appellant guilty, convicted him and sentenced him to imprisonment for life, on each of the counts. Aggrieved with the finding of the trial court, the appellant filed an appeal with the Court of Appeal which upheld the conviction and sentence of the High Court. Dissatisfied with the decision of the Court of Appeal, the appellant now brings a second appeal to this Court. The grounds of appeal contained in the amended memorandum of appeal are as follows:-

1. The learned Justices of the Court of Appeal erred in law when they upheld the admissibility of a retracted and repudiated confession, thus occasioning a miscarriage of justice.

2. The learned Justices of the Court of Appeal erred in law in upholding the conviction of the appellant based on weak circumstantial evidence thereby occasioning a miscarriage of justice.

3. The learned Justices of the Court of Appeal erred in law when they failed to evaluate the evidence in respect of the appellant's defence of alibi and wrongly rejected it.

4. The learned Justices of Appeal erred in law when they upheld the sentence of life imprisonment which was manifestly harsh and excessive in total disregard of the mitigating factors.

The appellant prayed that the appeal be allowed, the convictions be

quashed, the sentences be set aside and that the appellant be discharged,

In the alternative, the appellant prayed that the sentences of life

imprisonment be reduced

Representation

At the hearing of the appeal, Ms. Awelo Sarah, holding brief for Mr. Mooli

Albert represented the appellant while Ms. Ainebyoona Happiness, Chief

State Attorney, represented the respondent. The parties filed written

submissions which they adopted, initially before the original panel, and

later, before the reconstituted panel.

Appellants Submissions

On ground one, Counsel for the appellant submitted that the charge and

caution statement that the trial court relied on to convict the appellant was

obtained involuntarily and was wrongly admitted in evidence. Counsel

contended that the narration given by some of the victims (Oriku Charles

and Bagonza Herbert) before they died contradicted the impugned charge

. and caution statement. Counsel argued that the confession statement indicated that the appellant spent three days in custody without being presented to court as constitutionally required but also points to the fact that the appellant did not say anything in the three days he was under detention. According to Counsel, these facts point to the iikely terrible circumstances of torture that the appellant referred to but which were trivialized by the trial court and the first appellate court. Counsel was of the view that, it was more likely than not that the appellant suffered torture and was forced to sign a confession statement he did not make. Counsel also argued that the appellant was surprised by the medical report which was made to fit the narrative that the prosecution and the Police wanted. To buttress her argument, Counsel cited the of Hassan Kasule Vs Uganda, SCCA No. 10 of 1987 in which this Court observed that given the unsatisfactory features regarding the way the extra judicial statement was admitted in evidence, it would be unsafe to uphold the appellant's conviction In that connection, Counsel argued that it was unsafe for the Court of Appeal to uphold the appellant's conviction with such unsatisfactory features regarding the way the charge and caution statement was obtained. She accordingly contended that the learned Justices of Appeal erred in law when they admitted the charge and caution statement despite evidence on record which showed that the same had been obtained involuntarily, thus occasioning a miscarriage of justice.

On ground two, Counsel for the appellant argued that the learned Justices

of Appeal upheld the conviction of the appellant on the basis of

circumstantial evidence that related to blood stained clothes found in the

appellant's home. She contended that it was erroneous for the learned

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