THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATE COURT OF KAMPALA AT BUGANDA ROAD

CRIMINAL CASE NO. 0497 OF 2024

UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR

VERSUS

ANDERSON BURORA HERBERT ::::::::::::::::::::::::: ACCUSED.

RULING ON THE LEGALITY OF THE CHARGE SHEET

BEFORE HIS WORSHIP RONALD KAYIZZI

CHIEF MAGISTRATE.

The accused person Anderson Burora Herbert stand charged with two Counts.
Count I is hate speech Contrary to Section 26(1) (a) (c) and (2) of the Computer
Misuse Act Cap 96. Count II is malicious information Contrary to Section 28 (1)
and (2) of the Computer Misuse Act Cap 96.

Both offences relate to information allegedly shared by the accused via ‘X’ handle
“@harderHB”, relating to the person of Rt. Hon. Anita Annet Among, the Speaker
of the Parliament of the Republic of Uganda.

The accused took plea on the 3rd/07/2024. He denied both charges and Court
entered a plea of not guilty on both Counts. Court duly explained to the accused
his rights to apply for bail on that date.

However, instead of applying for bail, the accused’s Counsel led by Mr. David
Kamukama opted to raise a preliminary point of law seeking to have the charge
sheet strike out for being incurably defective.

The defence made its submission on the 03rd/07/2024 when the accused took
plea. The State replied on the 09th/07/2024 and the defence rejoined.

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The state was represented by Mr. Richard Birivumbuka -Chief State Attorney,
Ms. Joan Keko -Chief State Attorney and Mr. Ivan Evans Kyazze -Senior State
Attorney.

The defence was represented by eight Advocates namely; Mr. Kamukama David
as Lead Counsel assisted by Mr. Benjamin Katana, Mr. Phillip Munaabi, Mr.
Wamala Samuel, Mr. Tumusiime Kato, Mr. Sayid Kirarira, Mr. Wambi Daniel
and Mr. Muhereza Kenneth.

The issue for this court to determine is whether or not the charge sheet is
incurably defective and therefore should be struck out and the accused
person discharged.

It was the submission of the defence legal team that the charge sheet is incurably
defective and should therefore be struck out. That the Charge Sheet offends
Section 85 of the Magistrates Courts Act in so far the particulars of the charges
as contained in the charge sheet have insufficient facts which are necessary to
give information to the accused as to the nature of the offences.

That no malicious information alleged stated by the accused was included in the
particulars of the offence in Counts I and II. He cited the case of (Kalungi Robert
Vs Uganda HCCA No. 04 of 2015), the judgment of His Lordship Lawrence
Gidudu.

Mr. Philip Munaabi for the defence further submitted that in cyber related cases,
it is critical for the state to include the source code in the charge sheet. That the
same is missing in the charge sheet before this court.

The defence finally prayed that the Court finds the charge sheet incurably
defective and strikes it out.

In reply, Mr. Richard Birivumbuka, Chief State Attorney submitted that the
charge is not defective in any way. It was his submission that the said charge
sheet was drafted in accordance with the Rules enshrined in Section 88 of the
Magistrates Courts Act Cap 19.

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That the defence did not attack a specific Rule of Section 88 of the Magistrates
Courts Act which the charge sheet is infringes. That the charge sheet conforms
to both Sections 85 cited by the defence and Section 88 cited by the State.

According to the State, there are enough particulars to enable the accused Mr.
Anderson Burora understand the charges against him and that he took plea
without hesitation. That the charge sheet contains the names of the accused
person, the period within which the offence took place, the means which is the
computer via ‘X’ Handle used which is “@harderHB” and the effect to the victim
who in this case Rt. Hon. Anita Annet Among.

According to Mr. Richard Birivumbuka, whatever was written on the accused’s

‘X’ handle “@harderHB” is a document within the meaning of Section 8 (1) (a)
and (b) of the Electronic Transactions Act Cap 99.

That therefore there was no need to include the entire document on the charge
sheet in line with Section 85 (n) of the Magistrates Courts Act.

He concluded by submitting that giving details of the actual words which the
accused allegedly used would be more or less adducing evidence in the charge
sheet. That the more the tweets are summarized, the more content is destroyed
which is prejudicial.

He prayed that this court makes a finding that the charge sheet is not defective.

In rejoinder, Mr. Katana for the defence submitted that their contention is not
on the absence of the full text but that the particulars in both counts do not in
any way make reference to the particular tweets that are responsible for the
accused person’s current state of being an accused person. It cited Section 88
(0) of the MCA.

Mr. Munaabi for the defence submitted that the absence of the source code in
the charge sheet makes it difficult for the defence to know how the alleged
information complained of was sourced.

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The defence relied on the following decisions, Kalungi Robert Vs Uganda (HCCA
No. 41 of 2015 (ACD), Kaketo Farouq Vs Uganda (Criminal Revision No. 018
of 2023), Sunday Umar Vs Uganda (HC MA No. 29 of 2023), Stella Nyanzi
Vs Uganda (Criminal Appeal No. 79 of 2019) and Geofrey Kazinda Vs.
Uganda, Criminal Appeal No. 083 of 2013.

The state relied on the case of Parker Vs Parker Supreme Court 28 1956 and
it distinguished the case of Robert Kalungi Vs. Uganda Supra from the current
facts before this court.

I carefully listened to the submissions of both the defence and the state. I have
read and considered all the authorities cited by both the defence and the State.

I have also addressed my mind to Sections 85 and 88 of the Magistrates Courts

Act and the cited provisions of the Computer Misuse Act Cap 96 and the
Electronic Transactions Act Cap 99.

Section 85 of the Magistrates Courts Act states;

“Every charge shall contain, and shall be sufficient if it contains, a

statement of the specific offence or offences with which the accused
person is charged together with such particulars as may be necessary for
giving reasonable information as to the nature of the offence charged.”

Section 88 of the Magistrates Courts Act provides for the Rules of framing a
charge sheet from Rule (a) to Rule (r). Any charge sheet drafted in accordance
with the said Rules cannot be said to be defective.

Information Technology is a new era. The Laws on Computer Misuse and

Electronic transactions were enacted after the formulation of the Rules in Section
88 of the MCA and therefore when drafting charge sheets for offences committed
under these laws, we should bear that in mind and apply the said Rules with
modifications.

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It is settled law that for a charge sheet not to be defective, the particulars of the
offence must clearly bring out the ingredients of the offence(s).

It follows therefore that for this court to make a finding as to whether the charge
sheet is incurably defective, it needs to satisfy its self to whether the ingredients
of the offences are contained in the particulars as they appear in the charge
sheet.

In Count one, the accused was charged with hate speech Contrary to Section
26(1) (a) (c) and (2) of the Computer Misuse Act Cap 96.

Section 26 (1) of the Computer Misuse Act states;

a person shall not write, send or share any information through a

computer which is likely to –

a) Ridicule, degrade or demean another person, a group of persons, a

tribe, ethnicity, a religion or gender.
b) (b)………………..
c) Promote hostility against a person, group of persons, a tribe, an
ethnicity, a religion or gender.

From this charging section, the ingredients or elements of the offence are;

i. Act. There must be an act which is to write, send or share any information.
ii. Means. There must be means which is a Computer.
iii. Purpose. The purpose must be to ridicule, degrade or demean another
person or group of persons.

When I read the particulars of the offence in Count 1, I find all the three
ingredients of the offence of hate speech. The act is there which is sharing
information, the means are there which is using a computer Via ‘X’ handle
“@harderHB” and the purpose is also there which is to ridicule or degrade or
demean and promote hostility against the persons of Rt. Hon. Anita Annet
Among, the Speaker of the Parliament of Republic of Uganda.

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The prosecution has a legal duty to prove each of the above ingredients of the
offence and do so beyond reasonable doubt. This it can do by adducing evidence
to prove each and every ingredient of the offence.

It has a duty to adduce the evidence of the information allegedly shared by the
accused which amounts to hate speech. It cannot do this now in the charge
sheet. It can only do so during the trial.

In Count II, the accused was charged with Malicious Information Contrary to
section 28 (1) and (2) of the Computer Misuse Act Cap 96.

Section 28 (1) of the Computer Misuse Act states;

A Person shall not send, share or transmit malicious information about

or that relates to another person through a computer.

From the charging Section, the ingredients of the offence are;

i. Act. There must be the act which is sending, sharing or transmitting

information.
ii. Means. There must be means which is the computer.
iii. The information must be malicious.
iv. The information must be about or relates to another person.

Upon perusal of the particulars of the offence in count 2 charge sheet, I find all
the above four ingredients of the offence in the charge sheet. The particulars of
the offence therein can enable the accused understand the nature of the offence
in so far as it relates to his ‘X’ Handle “@harderHB” and Rt. Hon. Anita Annet
Among.

Be it as it may, the State has a legal duty to prove that ‘X’ handle “@harderHB”
which was allegedly used to post the information complained of belongs to the
accused. We shall wait for this evidence during the trial.

I agree with the State that information on ‘X’ handle “@harderHB” is a document
as per Section 8(1) of the Electronic Transactions Act Cap 99 as it can remain

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accessible and can be used for subsequent reference. The State therefore in
drafting the charge sheet, it only had to describe to the said document by its
name as per Section 88(n) of the MCA. It did not have to all its contents in the
charge sheet.

Source codes are matters of evidence to be adduced during the trial.

This courts finds that much of what the defence wants to be included in the
charge sheet is evidence and this will be adduced during the trial.

I therefore find that the charge sheet was prepared in accordance with Sections
85 and 88 of the MCA and therefore not defective.

However, to satisfy the defence, let the state amend the charge sheet and add
words which constitutes hate speech in Count 1 and those which constitute
Malicious information in Count II. It should however avoid adducing evidence in
the Charge sheet. This to avoid unnecessary applications which may delay the
trial.

For the above reasons the objection raised by the defence on the legality of the
charge sheet is hereby is overruled with no order as to costs.

Before I take leave of this matter and with due respect to the defence legal team,
I find the defence approach or strategy in this case to have contributed greatly
to the seemingly long incarceration of the accused person Burora Andersons
without a bail application being made before this court. I hold a view that the
first priority of the defence legal team would have been to apply for bail for their
client and then object to the legality of the charge sheet after their client was
admitted on bail. Once the accused pleaded to the charges, objecting to the
legality of the charge sheet would have come after the bail application. These
legalities would have been addressed later after the accused was admitted on
bail.

The accused has been on remand for now nine days but has never applied for
bail before this court. Nine days have been lost on legalities! Court cannot admit

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individuals on bail if they have not applied for it save if it is mandatory bail under
the Constitution. This Court cannot therefore be blamed for the continued
incarceration of the accused Burora Anderson who has never applied for bail
before it.

Ronald Kayizzi
Chief Magistrate
12th/07/2024