TREASON AND TERRORISM Experiences from prosecution and practical challenges

1. TREASON AND TERRORISMExperiences from prosecution and practical challenges Lino Anguzu Assistant DPP Office of the Director of Public Prosecutions – UGANDA.

2. TREASON. Definition of offence • In law, treason is criminal disloyalty to the state. • It is a crime that covers some of the more extreme acts against one's nation or sovereign. Examples of such acts include things such as participating in a war against one's country, attempting to overthrow its government, spying on its military, its diplomats, or its secret services for a hostile and foreign power, or attempting to kill its head of state. • Consider Article 17 of constitution – Duties of a citizen. • Consider – is political activism treason?

3. Relevant penal sections S.23. Treason and offences against the State. (1) Any person who — (a) levies war against the Republic of Uganda; (b) unlawfully causes or attempts to cause the death of the President or, with intent to maim or disfigure or disable, unlawfully wounds or does any harm to the person of the President, or aims at the person of the President any gun, offensive weapon, pistol or any description of firearm, whether it contains any explosive or destructive substance or not;

4. Relevant penal sections (c) contrives any plot, act or matter and expresses or declares such plot, act or matter by any utterance or by any overt act in order, by force of arms, to overturn the Government as by law established; (d) aids or abets another person in the commission of the foregoing acts, or becomes an accessory before or after the fact to any of the foregoing acts or conceals any of those acts, commits an offence and shall suffer death. • Other acts of treason defined in S.23(2 – 4) – all capital in nature.

5. Relevant penal sections S. 25. Concealment of treason. Any person who knowing that any person intends to commit treason does not give information thereof with all reasonable dispatch to the Minister, an administrative officer, a magistrate or an officer in charge of a police station, or use all reasonable endeavours to prevent the commission of the offence of treason commits the offence of misprision of treason and is liable on conviction to imprisonment for life. • NOTE. Can not be prosecuted after 5 years from date of offence – S.28

6. Elements of offence • Four distict elements:- • An obligation of allegiance to the state – citizen. • Wrongful intent – dependent on the specific section under which the charge is preferred. • Overt act. Commission of an overt act is a distinct element of the offence of treason. It must be specifically pleaded in the charge. S. 32. Definition of overt act ………… ‘every act in furtherance of the commission of the offence defined or every act of conspiring with any person to effect that purpose and every act done in furtherance of the purpose by any of the persons conspiring shall be deemed to be an overt act manifesting the intention’. • Participation of offender. • Qtns. Can a non citizen, person with dual citizenship commit treason?

7. How to prove the element. • Eye witness testimony • Ordinary citizens • Coperating witnesses/accomplices. • Agent provocateurs • Forensic evidence • Ballistics experts/reports • Handwriting experts/reports • Voice analysts

8. How to prove the element. • Documentary evidence • Meeting minutes/publications • Press releases • Emails/SMS/Whatsapp/FB • Audio and video recordings. • Physical evidence/Exhibits • Guns • Grenades / IEDs • Military uniforms • Walkie talkies

9. Practical challenges in proving the case • Rise in prominence of human rights. • Credibility of evidence - accomplices and spys. • Limitation on international judicial cooperation (MLA/Extradition) yet offence is almost always trans national. • Politics. • Lack of witness protection and societal pressure. • Negative publicity

10. TERRORISM Definition of offence “The unlawful and indiscriminate use of violence and intimidation, especially against civilians, in the pursuit of political, social, religious or economic aims” • No universal accepted definition – UN, AU. • Every country to criminalise terrorism - approach has been to criminalize ‘acts’ of terrorism.

11. Relevant penal sections • Provided in S.7(2) of The Anti-terrorism Act 2002 as amended in 2015 and 2017. A person commits an act of terrorism who, for purposes of influencing the Government or intimidating the public or a section of the public and for a political, religious, social or economic aim, indiscriminately without due regard to the safety of others or property, carries out all or any of the following acts- • 19 acts are listed (a – x)

12. Acts of terrorism • Manufacture, delivery, placement, discharge or detonation of an explosive or lethal device into or against a place of public use, government facility, public transportation system or infrastructure facility, with intent to cause death or serious bodily injury, or extensive destruction of property. • Murder, kidnapping, maiming or attack on a person or group of persons in public or private institutions. • Attack on diplomatic agents and internationally protected persons • Taking hostages • Seizure of aircrafts or public transportation systems • Serious interference with or disruption of an electronic system • Etc

13. Elements of offence Essentially 3 determinants for consideration of elements;- • Nature of the prohibited act or acts carried out (varied) – The Act • Manner in which the act is done or carried out – The Means • The purpose for which the act is done or carried out – The purpose • Example.

14. Elements of offence Offence under S.7(2)(a) will have the following elements. • Manufacture, delivery, placement, discharge or detonation of an explosive or lethal device into or against a place of public use, government facility, public transportation system or infrastructure facility. • Intention to cause death or serious bodily injury or extensive destruction of property. • Existence of a political, social, religious or economic aim. • Indiscrimination without due regards to the safety of persons or property. • The purpose to influence the government or intimidate the public or a section of the public. • Participation of the accused person.

15. How to prove each element. • Eye witness testimony • Ordinary citizens/Victims/survivors. • Cooperating witnesses/accomplices. • Forensic evidence • Ballistics experts/reports • Handwriting experts/reports • DNA analysis reports

16. How to prove each element. • Documentary evidence • Press releases • Emails/SMS/Whatsapp/FB • Audio and video recordings. • CDRs • Telephone recordings and surveillance tapes • Financial transaction records • Immigration records • Physical evidence/Exhibits • explosives / IEDs remains and residue • spent cartridges • Guns, body parts

17. Practical challenges. • Nature of offence – difficulty in obtaining evidence • Complexity of cases and huge volume of evidence • Absence of witness protection • Cross border nature. • Complexities with extradition and MLA. • Protracted trials • Rapid advancement of technology.

18. Recent cases;- Terrorism;- • Uganda v Kamoga Siraje & 13 Ors (CRIMINAL SESSION CASE No. HCT - 00 - ICD - CR - SC - No. 004 OF 2015) [2017] UGHCICD 1 (21 August 2017); • Uganda v Hussein Hassan Agade & 12 Ors (CRIMINAL SESSION CASE No. 0001 OF 2010) [2016] UGHCICD 1 (26 May 2016); Treason;- • Uganda v Okot & 12 Ors (CRIMINAL SESSION CASE NO 0477 OF 2010) [2012] UGHC 97 (30 May 2012);

19. THANK YOU!