In Summary

They surrounded their target, Dr Ismail Kalule, and in less than a minute had successfully bundled him in a white omni bus and driven off. Another team of armed uniformed police, prisons and military personnel looked on as all this was happening. They were part of the mission

Once a thriving, happy home, Dr Kalule’s family has been reduced to begging in mosques and from relatives to survive. This is how Ms Ismail sustains the couple’s four children aged five, eight, 10 and 12 years

Armed men including the police and the army stood outside the court house on April 10 ready to do exactly what a High Court judge, only minutes ago, had warned them against.

They surrounded their target, Dr Ismail Kalule, and in less than a minute had successfully bundled him in a white omni bus and driven off. Another team of armed uniformed police, prisons and military personnel looked on as all this was happening. They were part of the mission.
Justice Moses Mukiibi had laboured, in his ruling as he granted Dr Kalule bail, to lecture security organs about the importance of respecting court orders and the fundamental rights of persons arrested and detained.

“Judicial power is derived from the people of Uganda,” Justice Mukiibi said, adding that, “and it is exercised by the courts on their behalf. The people have never said that a person accused of terrorism-related offences should be never be released on bail.”

As he laid out stringent bail conditions for Dr Kalule, Justice Mukiibi, the head of the Kololo-based International Crimes Division (ICD) of the High Court, observed that bail is a constitutional right to any Ugandan. He then added that there was absence of evidence that the suspect may cause lawlessness to the society if released on bail.

At the time of this writing, the whereabouts of Dr Kalule are still unknown. Brig Richard Karemire, the UPDF spokesperson, told Sunday Monitor that “security agencies” have Dr Kalule in their custody but declined to divulge any further details.
Most of our questions were met with one answer, “in the interest of national security”.

Justice Mukiibi’s lecture was rooted in history of not only Dr Kalule’s case but the behaviour of security forces when it comes to court orders and processes that are seemingly unfavourable to them.

It was a script that only, Dr Kalule, 45, and others in a similar predicament can narrate so well. His documented ordeal with security agencies starts in 2008, although sources point to earlier date.

Who is Kalule?
Dr Kalule was a son of prominent Muslim cleric and former leader of Kiwatule Mosque, Hajj Sulaiman Kabega, who died last year. The operatives after Dr Kalule who was mainly based at Ntinda Mosque did not spare the faithful at Kiwatule Mosque their wrath.

In December 2016, his brother Sheikh Yunus Mukasa, the Deputy Imam of Kiwatule mosque, was arrested together with other clerics and faithful including preachers from India, based on wrong intelligence. The group was later released and the then police boss Gen Kale Kayihura apologised for the arrests.

Dr Kalule’s family and relatives call him the “smart one” who not only excelled in secular school but also in his Islamic faith studies.
As a child, he was put under the tutelage of Sheikh Zaid Mugenyi Asooka in Ngando, Butambala. It was here that he received his grounding in religious studies. He then proceeded to Bugembe Islamic Secondary School in Jinja where he did his secondary school.

After his Senior Six, he was sent to Pakistan where he trained as a doctor. On return, he opened up a clinic in Kampala and embarked on preaching at Aldina Mosque in Old Kampala, Ntinda and Kiwatule mosques.

The troubles for the father of four started with religious rivalry with his fellow clerics.
“They would compete on who is better. One would say ‘I went to Pakistan’ and another would say ‘I trained in Saudi Arabia,” one of his sisters remembers.
In the July 2010 Kampala bombings, Dr Kalule was among the key suspects arrested but investigations, according to the family, yielded nothing as would the High Court.

“The evidence adduced by PW1 and PW2 against A12 [Dr Kalule], which I have already analysed above, does not point at his having either aided, or abetted, or financed, or harboured, or rendered support to any person for the commission of the offence of terrorism or any other,” Deputy Chief Justice Alfonse Owiny-Dollo, then a High Court judge, said as he acquitted him.

His family says government officials know the truth that he is “innocent” but for some reason unknown to them, they keep on him.
Dr Kalule’s home in Ntinda has been raided countless times and in one incident police assisted by KCCA operatives demolished the anterior of his fence and were only stopped from doing further damage by residents.

“They should release him because he has done nothing wrong. There is no single file they have on him. They move him and others from one detention facility to another,” Dr Kalule’s sister says.

“I want justice for my husband,” says Khadijah Ismail, “because he has been released four times but they keep him, imprison him.”
“They don’t have any evidence. At least let them bring evidence,” Ms Ismail, a Kenyan national says. “For 11 years this has been happening. At least, let them bring him in court and say the case.”

Once a thriving, happy home, Dr Kalule’s family has been reduced to begging in mosques and from relatives to survive. This is how Ms Ismail sustains the couple’s four children aged five, eight, 10 and 12 years. The death of the children’s grandfather, Ms Ismail says, could imply the end of the children’s education.

“Since I came here, I haven’t gone back to my country because of this problem. Always no money, they make us fear, they make us scared, they destroy everything. We don’t know what these people want from him,” she says with tears flowing.


More of the same
The brutality with which plain-clothed operatives stormed the court grounds and grabbed Dr Kalule did not alarm many, at least those who follow daily events across the country.

Such incidents have become a common occurrence. The examples are many. In 2016, a rowdy mob supporting former IGP Kayihura raided Makindye Chief Magistrates Court as police looked on.

In November last year, shabbily dressed gun-brandishing goons brutally re-arrested suspects in the murder of former police spokesperson Andrew Felix Kaweesi after they had been granted bail by Nakawa Grade One Magistrate. The men disappeared for days, only to re-emerge later in police and military custody.

On January 12, 2017, armed men travelling in a car stormed the premises of Gulu High Court and re-arrested Dan Oola Odiya, the Uganda Peoples Congress (UPC) national deputy mobiliser and his two co-accused, Mr Kenneth Otto and Mr Sam Ojok Obama after the Director of Public Prosecutions (DPP) dropped charges against them.

On March 1, 2005, security forces raided the High Court to re-arrest five PRA suspects bailed after 15 months of detention.
In 2016, Dr Kalule was once again one of the suspects re-arrested even after court acquitted them following a lengthy trial. Their case was presided over by the now second most powerful man in the judicial hierarchy.

Justice Owiny-Dollo acquitted the five men after prosecution failed to prove that they were involved in the Kampala bomb attacks that left 76 dead and scores injured.

Dr Kalule and the others; Abubakari Batemyetto (Ugandan), Omar Awadh Omar, Yahya Suleiman Mbuthia and Mohamed Hamid Suleiman (Kenyans) were immediately re-arrested after being released from Luzira.
The whereabouts of Dr Kalule remain unknown while the others are incarcerated at Luzira with no trial scheduled for their “new” crimes.

What judge said
Before I set the bail conditions, I wish to make some observations for the education of the security organs. The Constitution of Uganda (1995) has confirmed and guaranteed fundamental rights of persons arrested and detained for and accused of serious criminal offences.
Ordinarily, a person exercises and enjoys his/her liberty. Such liberty is taken away when there is reasonable suspicion that the person has committed or is about to commit a criminal offence. The police undertake investigations to establish the truth of their suspicion.
In capital offences the police and prosecution are given 180 days [the statutory remand period] within which;
(i)To complete investigations or inquiries
ii) To prepare an indictment and summary of the case
iii) To cause the accused to be produced in court for a magistrate to read out and explain the indictment to the accused person and to commit him/ her for trial by the High Court
iv) To give to the accused person a copy of the indictment and the summary of the case
After committal the accused person is entirely in the hands of the High Court. Despite the indictment for capital offences and the committal of the accused person for trial he or she is entitled to apply to the High Court to be released on bail. The Court has discretion to grant that person on such conditions as it considers reasonable.

When an accused person applies for bail the prosecution and the police are given an opportunity to produce evidence of any serious concerns of the State in objection to the application.
Judicial power is derived from the people of Uganda, and it is exercised by the courts on their behalf. The people have never said that a person accused of terrorism related offences should be never be released on bail.

Nor have they said that a person who is arrested by counter terrorism officers or a combination of security organs should never be released by court on bail. Players in the criminal justice system have specific roles. It is important that we recognise, understand and respect each other’s role. Some public officers carry out their roles with the aid of weapons. Others do so with the aid of pens. Either method is empowered by the people through the Constitution and other laws.

As the different players execute their functions, they should have clear vision and observance of the constitutional provisions and the law. No organ should exercise too much power in total disregard of the roles of the other organs.

The people of Uganda have not given any single organ of State all powers and responsibilities to do everything. The Constitution and other laws must be seen to operate and to have effect.

We should not believe in the existence of any “above” who gives orders which violate the provisions of the Constitution and the laws. For example, there is no “above” who can give orders to overrule and ender nugatory the orders of any competent court.
It is only bad or uniformed officers in the security organs who can flagrantly disrespect court orders. We should all bow our heads to the governance of the rule of law.

Moses Mukiibi, judge and head,
International Crimes Division