By The Independent Team
Muwanga at murder scene
Witness sees victims being shot
This is an edited version of the judgement of court which convicted Chris Rwakasisi on murder and sentenced him to death. Rwakasisi, the former Minister of State for Security in the President’s Office, was one of the most feared in the Obote II government (1981-85). The High Court sentenced him and his co-accused Elias Wanyama to death in 1988. Rwakasisi’s conviction was later upheld by the Supreme Court, but Wanyama was acquitted. The judges were: Manyindo D.C.J, Platt J.S.C, Seaton J.S.C. (Appeal against conviction and sentence of High Court decision holden at Mbarara by. Justice Ignatius Mukanza on 30th June 1988).
In May 1981 Milton Obote was the President for the second time since independence. Rwakasisi was a Minister of State in the President’s Office. His home area was Mbarara. Some people resented the government. They took to the bush, held meetings and waged guerilla activities. In Mbarara a group of guerillas was believed to exist. Plans were made to act against them. A number of people were brought to Nile Mansions in Kampala. Some of them were subsequently taken to Kireka Barracks on the outskirts of Kampala where they were killed.
These events led to criminal proceedings six years later. Rwakasisi, Wanyama and three co-accused were tried in the High Court on 16 counts of murder, kidnapping with intent to murder and robbery.
On 30th June 1988 Rwakasisi was sentenced to death on five counts of kidnapping with intent to murder and Wanyama received the same sentence on six counts of murder. This appeal is against the convictions and sentences.
Kidnapping with intent to murder is an offence under S. 235(1) (a) of the Penal Code. The relevant provisions of the Code state as follows:- ‘235. (1) Any person who by force or fraud kidnaps abducts takes away or detains any person against his will; (a) With intent that such person may be murdered or may be so disposed of as so be put in danger of being murdered’¦commits an offence and shall on conviction be liable to suffer death.’The victims are named as: Kananura, Agaba, Haji Mbiringi, Rwanchwende, Kabazaire, Muhumuza and Mwiine.
Thus count 8 in the particulars of offence alleged as follows: ‘Chris Rutimbiraho Rwakasisi and others still at large, on or about 15th May 1981 at Rubaya Trading Centre in Mbarara District forcibly took away Rwanchwende against his will with intent that the said Rwanchwende may be murdered.’
Particulars of offence in counts 9,11, 12 and 13 alleged as follows: ‘Elias Wanyama and others still at large on or about 20th May 1981 at Kireka Barracks in Mpigi District murdered George Kananura Rwabutoto.’
On or about 13th May 1981, Rwakasisi called a meeting at Nile Mansions in Kampala. It was attended by Wanyama and high ranking Police, Army and Special Force officers. After the meeting, Rwakasisi came out with a list of names of people suspected of waging a guerrilla war. He ordered some security officers to go to Mbarara and have these people arrested and brought before him. The officers were directed by Rwakasisi to get in touch at Mbarara; two intelligence officers from the President’s Office and two others from Special Branch.
The persons named would identify those suspected of being guerillas, who were to be brought to Rwakasisi in Nile Mansion, Kampala. These instructions were carried out. Seven victims were seized on 19th May 1981 at their homes in Mbarara a ‘posse’ of soldiers and special forces men. Some of the victims’ properties were also seized. They were carried by force or ruse to Mbarara Police Station where they were put into a uniport. Subsequently the victims were taken to Nile Mansions, Kampala where they were interrogated in Room 223 by Rwakasisi. They were later taken to Kireka Army Barracks and eventually put to death and that Wanyama was present and participated in the murder.
Rwakasisi’s defence: He said he had neither held nor attended the meeting at Nile Mansions where a decision was made regarding anti-guerrilla actions. He had not ordered the Mbarara victims’ kidnappings and knew nothing about their fate; orders for the seizure and taking away of the victims was a collective security decision carried out lawfully by the police, army and Special Force officers to protect the government against persons suspected of treasonable activities; if subsequent to the arrests unfortunate acts were carried out, these were not intended by or in contemplation of those who gave lawful orders for the arrest of the victims.
Wanyama’s defence: He said he was not in Mbarara, not at Nile Mansions nor at Kireka Barracks on the date of the killings but in Bushenyi District.
The High Court judge found that the evidence against Rwakasisi was mostly circumstantial, the only direct evidence of his participation came from Witness No. 23 Katabazi, an army corporal stationed at Nile Mansions, who witnessed the meeting from which Rwakasisi emerged to give orders for seizing the victims in Mbarara and bringing them to him and of the subsequent interrogation of the victims by Rwakasisi in Room 223 of Nile Mansions. The judge held that Katabazi was an accomplice but he found corroboration of his evidence and accepted it. He also accepted the testimony of other witnesses of Rwakasisi’s visit to Kireka Barracks to see the victims in their cells. Shortly before they were taken out and killed and of his evasive attitude when relatives of the victims sought help from him in ascertaining their whereabouts. From this evidence the judge inferred Rwakasisi’s intent that the victims might be murdered.
With regard to Wanyama, the judge found that his alibi was disproved by evidence of witnesses Adam Muhanguzi, Atukunda Hope, John Fisher Lwanga and Ismail respectively, who identified him at Mbarara, Nile Mansions and Kireka at the time when he claimed to have been in Bushenyi.
The lawyer for Rwakasisi first argued that; the trial judge erred in law and fact in holding that the arrests’ of the victims in counts 8, 9, 12 and 13 amounted to the offence of ‘kidnapping with intent to murder’. He particularly erred to hold that the essential ingredient of ‘intent to murder ‘ was proved. He submitted that these were all lawful arrests which could not by any stretch of imagination amount to kidnapping.
Count 8- Rwanchwende: The witness Erinore Rwanchwende testified that on or about 15th May 1981 at about 5.00 a.m, she was at her home in Rubaya in Mbarara with her husband Rwanchwende and two children when many armed soldiers came. They were in a vehicle accompanied by two men in civilian dress who forced them to open the door. Her husband was pointed out by one of the co-accused, Grace Murungi, as the wanted man. He was arrested and taken to the Land Rover and was finally taken to Kireka Army Barracks. Herbert Natukunda, the son of Rwanchwende, confirmed that his father was forcibly taken away on the night in question. Natukunda was asleep in his room with his young brother Agaba whom the assailants attacked and his brother escaped from the house only to be arrested later, kidnapped and disappeared. His father Rwanchwende talked to one Katabazi who appeared to be the leader of the group; he informed Rwanchwende that they had instructions from the President’s Office to arrest those people
Count 9 – George Kananura Witness Frank Gordon Karokora Rwabutoto on 15th May 1981 was at home at Nkokonjeru, Mbarara, together with his father Kananura, his brothers Donald Nyakura Kayoma and Michael Mugisha. The witness who was in the living room heard a noise as though someone was coming in. He woke up to see Murungi and another man, who moved up and down with a pistol. After entering, Murungi introduced himself and the man Katabazi from the President’s Office. Murungi told Kananura that he was wanted somewhere. The latter said he was not going anywhere. Eventually they were all invited to the sitting room. Murungi then explained that Kananura was wanted in a meeting. Katabazi talked to Murungi and then said that Kananura was wanted in a meeting with the Minister whom Katabazi said was Chris Rwakasisi.
Katabazi was brandishing a pistol. There were other armed men in the Land Rover. Kananura conceded to go and was allowed to change his clothes. While he was doing that, soldiers were searching the house; after this Murungi and Special Force men made them carry their properties to the waiting vehicle. Properties that were carried away included watches, briefcases, clothing, music system, radios, cameras and money including Shs 2,000 from the witness.
When the looting was finished, Kananura, the witness and his brothers were sent outside the house. Kananura bade them farewell and was carried away in a Land Rover.
Count 11 – Haji Mbiringi – The witness Bwami Bwete was engaged with his elder brother Suleiman Mbiringi in business in Mbarara town. On 15th May 1981 at about 11.00 a.m. he was with Mbiringi at their place of business when a Land Rover pulled in. On it were about six people. One of them was a policeman and the others were Special Force men. Mbiringi was then thrown aboard the Land Rover and the witness followed him up to the Police Station but was not allowed to see him. Later Mbiringi’ s wife was able to see him at the station.
Count 12 – Kabazaire: The witness Hilda Jane Kabazaire was the wife of Constantine Kabazaire. On 15th May 1981 at about 5.00 am she was in her house with her husband and children. They heard two gunshots outside and some people ordered them to open the door. Those who entered were army men, who ordered them to light a lamp. Her husband was slapped and ordered to go outside and lie down. He asked why they had given him such treatment. Among the army men was Murungi who informed them that they had been sent by Rwakasisi to arrest Kabazaire. Outside the house were more soldiers, two of whom guarded her husband. The men demanded money from the witness and she gave Murungi Shs 200,000. They also took bed-sheets, a radio and other items. Then Kabazaire was ordered to enter the Land Rover which was outside and those people drove off with him.
Count 13 – Misaki Muhumuza: There really was no evidence as to how his arrest occurred. The witness Judith Tukahirwa testified that she used to operate the Tip Top Bar in Mbarara town. Her elder sister Faith Nkore used to work with her. She also had two brothers who had a shop in the town, one of whom was called Muhumuza, and a father, Yowen Tibenderana. On 15th May 1981 she was in the Tip Top Bar with her brother Muhumuza when they received information that one Hope Mirembe and one Jovia Bwaniaga had been arrested. Hope was Muhumuza’s girlfriend. He went to the Police Station. Later she received further information that Muhumuza had been arrested. On the following day the witness went to take food to Muhumuza only to be told that he and others had been taken away.
Tibenderana testified that Muhumuza was his son, who used to stay in Mbarara together with his sisters, Faith Nkore and Tukahirwa. While he was at home the two girls came and said Muhumuza had been arrested by soldiers. The witness contacted different people trying to trace his son but in vain.
The trial Judge in his judgment observed that Nsasirwe and Murungi, apart from being Special Branch policemen, appeared to him to have been UPC supporters. He took judicial notice of the fact that during Obote II regime the UPC functionaries were above the law. He found that the arrests of the seven victims in the kidnapping counts of the indictment (known as ‘the first Mbarara group’) was neither a military nor a police exercise, ‘It was an exercise by Intelligence Officers from the President’s Office.’
The judge noted that if that was a normal arrest exercise the Police at Mbarara would have been involved in the arrests, and he asked: ‘Why only 2 officers of the Special Force were chosen to assist in the exercise and not employ the CID Department with trained personnel to carry out the investigations?’
The judgment found that Rwanchwende, Mbiringi, Kananura, Kabazaire and Muhumuza were seized and taken away against their will. There remain to be proved (1) that it was Rwakasisi who was responsible for the arrests; and (2) the element of the offence that there was an intention on his part to have the victims murdered.
Rwakasisi’s lawyer submitted that the learned trial judge erred in law in holding that Rwakasisi procured the arrests of the victims; he particularly erred to believe and act on the evidence of Katabazi.
The learned judge was aware that the prosecution evidence did not allege that Rwakasisi was present when the arrests were being carried out. He observed that the evidence in respect of Rwakasisi was purely circumstantial. However he accepted testimonies of witnesses number 6, 9,12,17,18,20,22, and 23. On the basis of their evidence, he found that the inculpatory facts were incompatible with the innocence of Rwakasisi. I have perused the evidence of these witnesses for the prosecution, of whom Ismail Katabazi, was described by the learned judge as ‘the star or the key witness.’; he was in 1981 a soldier in the Uganda National Liberation Army; he was on duty guarding room No. 223; that office was under Rwakasisi who used to come with Paulo Muwanga (then the Vice President in the Obote II government) and Peter Otai, Minister of State for Defence.
On 13th May 1981, Katabazi testified, Rwakasisi came and entered room 223, locking it behind him. Then came high ranking officers from the police and the army: Okoth Ogola, the Inspector General of Police, Kanywamusayi, the Director of CID, and others. They all entered room 223 and shut themselves in with Rwakasisi. They remained inside for about two hours holding a meeting; at a certain stage Katabazi was called for by the Chief Presidential Escort, Odongo Oduka. After the meeting those inside the room came out, including Rwakasisi who was holding some papers.
Rwakasisi came to where the witness and others were sitting and addressed all the soldiers who were in that room in Swahili; he directed them to go to Mbarara where they would meet people, whom he named, who would identify the Mbarara guerillas. Rwakasisi instructed the soldiers to ‘go to Mbarara and bring my guerrillas here and I want them here.’ He said that Oduka would do the rest of the briefing and left. Then Oduka told them that the vehicles were ready to go to Mbarara; there were three Land Rovers which carried the witness, very many Special Force Officers and three girls, including one named Hope, whose task was to show to the soldiers another girl whom they were to arrest and bring to Nile Mansions.
When they reached Mbarara, they went to the Police Station and the higher ranking officer entered the office and spoke with the OC while the witness and others of low ranks remained outside. Later they went to the house of the Mbarara Commanding Officer Major Obonyo. There they found the Brigade Commander Smith Opon, Nsasirwe and Murungi together with the OIC Police Mbarara and two Special Force policemen went inside the Commanding Officer’s house, while the witness remained outside, those inside the house were eventually joined by the Chairman and the Secretary of UPC.
Katabazi said that as they did not find Rwakasisi at Nile Mansions the prisoners were deposited at the Nile Mansion Conference Police Post. On the following day Rwakasisi was seen at Nile Mansions. The seven victims were brought to room 223. At that time Katabazi went off duty. On the following day he could not see the seven victims brought from Mbarara.
According to Katabazi, after interrogation in room 223, suspects were taken either to Nakasero or Kireka and others released there and then. Any prisoner taken to Kireka was never brought back to Nile Mansions.
Counsel for Rwakasisi criticised the trial judge that he drew conclusions before he should and that this and other passages showed his biased approach; had the learned judge analysed the evidence impartially, he would have observed that Katabazi was contradicted by the admitted evidence of Francis Omiya Amigos, a station duty constable who was posted as a Sentry to the Nile Mansion Police Post on 18th May 1981.
Supreme Court: I did observe inconsistencies and discrepancies in Katabazi’s evidence and between his evidence and that of other prosecution witnesses but I cannot say that the learned judge ought to have found that they showed deliberate untruthfulness or were so grave as to make the witness one whose credibility could not be accepted.
I will turn to the evidence of Adam Muhanguzi. This witness was a prisoner at Kireka Military Barracks when seven people were brought in, of whom he recognised three as Mbiringi, Kananura and Karuhanga. On the same day, 19th May 1981 at 5 pm Muwanga, Rwakasisi, Wanyama and Omoya, an intelligence officer, came to Kireka Barracks. The soldiers opened the door for them and Muwanga called for Kananura and Mbiringi. He asked them whether they still denied they were guerillas. He warned them what would happen to them if they denied they were guerillas and that Mbiringi should inform their friends accordingly.
Muwanga had a list of names which he gave to Omoya; the seven victims from Mbarara were killed shortly afterward; Rwakasisi did nothing on that occasion but the learned judge commented that: ‘I do not think that his accompanying the Vice President was really an innocent one in the light of the evidence adduced against him.’
The witness Lwanga was severely cross-examined during the trial because in his testimony he said that Omoya and several other soldiers had come from Nile Mansions and returned to the intelligence room and started calling Mbiringi and his group one by one; they were severely beaten and burnt using polythene papers and then brought back.
Rwakasisi’s lawyer pointed to other alleged inconsistencies in Lwanga’s evidence. For example in his testimony in court, he told of seeing Wanyama cutting Kananura ‘with an axe’ and in his statement to the police he had said that Wanyama cut Kananura with a panga. When this was put to him in cross examination, he said; ‘The correct name for that instrument is not known, it could have been a panga or an axe. I know the difference between a panga and an axe.’
Lwanga’s evidence was attacked by Rwakasisi’s counsel as unworthy of belief because he always seemed to be giving himself opportunities to see things that other people couldn’t and didn’t see. Muhanguzi was a soldier in the Uganda Freedom Movement Army. In January 1981 he was captured by UNLA soldiers and was transferred to Kireka Barracks. He stayed there for two to three months during which time some prisoners were brought in on 19th May 1981 from Mbarara.
Among them were Mbiringi, Kananura and Karuhanga, who were put in the same cell as him. On that day at around 5.00 pm, Muwanga, Rwakasisi, Wanyama, and Omoya, came and talked to the prisoners, suggesting that they knew what would happen to them if they continued to deny that they were guerillas and then those people left. At around 7.00 pm the cell door was opened and about 18 people were taken out by soldiers. Among the people were Mbiringi, Karuhanga and Kananura. Soon afterwards the witness climbed on a drum and saw the victims had their hands and legs tied with sisal ropes; that was followed by rapid gunfire of many shots and then people crying and screaming. The witness who had climbed down from the drum when the gunfire started, stood, again on the drum afterwards and saw the soldiers lifting people and dropping them in a Land Rover which took them away.
Supreme Court ruling: There was evidence from Katabazi that during the period when the arrests allegedly occurred and the killing of the seven victims from Mbarara, there was a routine system that was followed: arrests of victims, bringing them to Nile Mansion for interrogation, dispatch of them either to Nakasero or to Kireka Barracks. In the event they went to Nakasero, they would be tortured and brought back; if they went to Kireka barracks, they were not seen again.
We now turn to the appeal of Wanyama. From my perusal of the record, I am left with some lingering doubts. I have set out at some length the evidence of the main witnesses from which I have received a different impression than the learned judge. Upon such evidence, I would dismiss the appeal of Rwakasisi. In my view, the appeal of Wanyama succeeds.
Dated at Mengo this 20th day of March 1991
Justice of the Supreme Court