Nsubuga and Another v Uganda (Criminal Appeal No. 223 of 2021) [2022] UGCA 253 (14 October 2022)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CRIMINAL APPEAL NO. 223 OF 2021

# (ARISING FROM HIGH COURT CRIMINAL SESSION CASE NO. HCT-00-AC-SC-084 OF 2021)

#### (ARISING FROM SUPREME COURT CRIMINAL APPEAL NO. 92 OF 2018) $10$ (CORAM: BAMUGEMEREIRE, MADRAMA, LUSWATA, JJA)

#### 1. GUSTER NSUBUGA

2. ROBINHOOOD BYAMUKAMA} ...................................

#### 15

$\mathsf{S}$

# **VFRSUS**

UGANDA} .................................... (Appeal from the judgment of Hon. Justice Paul K. Mugamba J, as he then was of the High Court, Anti - Corruption Division at Kololo delivered on 3rd April, 2013 in criminal case no. 084 of 2012). **JUDGMENT OF COURT**

This is an appeal from the decision of Mugamba $J$ (as he then was) of the High Court Anti - Corruption Division in Criminal Session Case No. 084 of 2021. The appellants and 2 others were indicted on 6 counts under the Computer Misuse Act, 2011 (CMA) and the East African Community Customs Management Act, 2009 (EACCMA). They were indicted in count $\overline{25}$ 1 with unauthorised use and interception of computer services contrary to sections 15(1) and section 20 of the Computer Misuse Act 2012, in count 2 with electronic fraud contrary to section 19 of the Computer Misuse Act, 2011, in **count 3** with unauthorised access to data contrary to Sections 12(2) and 20 of the Computer Misuse Act, 2011, in count 4 with producing, 30 selling or procuring, designing an being in possession of devices, computers, computer programs, designed to overcome security measures for protection of data contrary to Section 12(3) and 20 of the Computer Misuse Act, 2011, in Count 5 with unauthorised access to a customs computerised system contrary to Section 191 (1) of the East 35 African Community Customs Management Act, 2009 and in **count 6** with fraudulent evasion of payment of duty contrary to section 203(e) of the East African Community Customs Management Act, 2009.

A2 & 43 were acquitted white the appetlants who were described as A1 and A4 respectively were convicted on 5 counts and acquitted on count 6. The appettants were each sentenced, on counts 1,3 and 4 to I years' imprisonment, on count 2 to 12 years'imprisonment and on count 5 each convict was sentenced to a fine of US\$ 4,500. Al[ imprisonment sentences on the counters were to be served concurrently. 10

The appettants being dissatisfied with the conviction and sentence appeated to this court in Criminat Appeat No. 14 of 2013 and the appeal was atlowed on one ground l that failure to take plea to the amended indictment occasioned a miscarriage of justice. The Justices of the Court

of Appeat on 23'd October,20l8 ordered a retriaI and found no reason to delve into the other grounds of appeaI and a retriaI commenced at the high court before Hon. Justice Gidudu. 15

ln the meantime, before the retrial could take place the Respondent was dissatisfied with the decision of the Court of Appeat and appeated to the

- Supreme Gourt vide Criminat Appeat No. 92 of 2018 whereat they obtained a stay of proceedings of the High Court pending appea[. 0n the l6th August, 2021, the Supreme court detivered its judgment wherein they set aside the orders of the Court of Appeat, reinstated the orders of the trial court, cancetled the appe[tants baiI and sent them to prison. They 20 - hetd that there was no miscarriage of justice by not taking ptea to the amended indictment and a retriaIwas not catted for. The appeltants then had the matter in the court of appeaIfixed for hearing on the merits.

When this matter came up on the 20th June, 2021, learned Counsel Mr. Lomuria informed court that they had fited Misc. Apptication No. 5j of

- 2022 tor the appeaI to be struck out as being incompetent. The matter was argued and the crux of the submission of the State was that the decision setting aside the judgment of the triaI judge and ordering a retrial of the Court Appeal was set aside by the Supreme Court which reinstated the conviction and sentence of the appellant by the High Court 30 - and the matter had rested having been determined by the highest Appellate Court. The appellants on the other hand argued that the Court of AppeaI had not heard the appeaton merits but determined it on a point of law and conc[uded that the triat of the High Court was a nu[[ity. ln their judgment, the Court of Appea[, allowed the appeal on the ground that the 35

appellants had not taken plea to the amended indictment and this $\mathsf{S}$ rendered the trial a nullity. They found no reason to delve into the merits of the rest of grounds of appeal on that basis the appellants should be retried. We held that when the Supreme Court overturned the Court of Appeal decision, and reinstated the High court judgment, it was on the ground that the judgment was not a nullity. This left the other grounds of 10 appeal of the appellants intact and there is a valid appeal before this

court. The Court rejected the submission of the applicant (URA) that the decision of the Supreme Court was final on the merits of the appeal or that this court lacks jurisdiction to hear this appeal. On 20th June, 2022 we dismissed Misc. Application No. 53 of 2022 and allowed this appeal to 15

proceed on the merits on the other grounds not determined previously.

Bother parties were directed to file written submissions and judgment was reserved on notice.

#### **GROUNDS OF APPEAL** 20

- 1. That the learned trial judge erred in law when he wrongly admitted and heavily relied on the prosecution's electronic evidence and exhibits that were illegally seized, illegally extracted without a search warrant, fabricated and unauthentic contrary to the law hence wrongly convicting the appellants. - 2. The learned trial judge erred in law and in fact when he convicted the appellants without the prosecution disclosing the Encase software forensic tool used and mirror images analysed to the defence, as required by the law thus occasioning a miscarriage of justice. - 3. The learned trial judge erred in law and fact where he erroneously misdirected himself in evaluating evidence of the prosecution and cross examination evidence on record hence arriving at a wrong decision this occasioning a miscarriage of justice. - 4. The learned trial judge erred in law when he commenced the trial and convicted the appellants without the assessors taking oath

- contrary to the provisions of the [aw, thereby occasioning a miscarriage of justice. - 5. The [earned triat judge erred in law and in fact when he ignored major inconsistences and contradictions in the prosecution's evidence that the offences charged were proved beyond reasonable doubt hence occasion a miscarriage of justice. - 6. The [earned triatjudge erred in law and in fact when he convicted and sentence the appe[[ants twice for the same offence occasioning a miscarriage of justice. - 7. The learned triat judge erred in law and in fact in ignoring and attowing the itlegat conduct of the Uganda Revenue Authority to prosecute, investigate the appe[ants made foreign to the known legaI modes of commencing prosecution thereby occasioning a misca rriage of justice. - 8. The learned triat judge erred in law and in fact when he convicted the appellants passed excessively harsh sentence against the appe[[ants on count 2 and count 5.

At the hearing of the appeal, the Appeltants represented themsetves whi[e the respondent was represented by learned Counsel Mr. Lomuria Thomas Davis, an officer in charge of litigation in the prosecution unit of Uganda Revenue Authority (URA) assisted by learned Counsel Mr. Ronald Bashaba an officer from URA.

## Ground one

That the learned triat judge erred in law when he wrongly admitted and heavity relied on the prosecution's electronic evidence and exhibits that were ittegatty seized, iltegalty extracted without a search warrant, fabricated and unauthentic contrary to the law hence wrongly convicting the appeltants.

The appeltants submitted that it is the most basic constitutional rute that searches conducted outside the judiciat process, without prior approval

5 by a judge or magistrate are per se unreasonabte (See Gootidge vs. New Hampshire, 403 US. 443, 454-55 (1971) (Ouoting Katz vs. United States, 389 US.347,js7 0967)).

The appeltants further submitted that the rules relating to authentication and best evidence when admitting etectronic evidence defer from the

- rutes relating to admissibitity of records retied on Kytto vs. United States, 5:B US.273l (2001). Further, the triaI judge's decision that the search and subsequent seizure on the arrest of Al, A2, A3 was lawful without a search warrant was erroneous for contravention of Section 28(1) of the Computer Misuse Act (CMA). This section requires a magistrate to issue 10 - 15

a search warrant to a potice officer and not an officer of URA to seize and take evidence from a comPuter.

The appettant submitted that Section 28(3) CMA attows seizure, search and copies to be make only under authority of a search warrant.

The appettants content that the tearned triat judge based his decision on Section 6(2) of the Criminat Procedure Code Act yet this provision shoutd not override the tegat requirement under Section 28(3) CMA.

Further, they submitted that the appettants remained in custody for 4 days when the respondent was in possession of the items untiI when they were remanded in prison. ln the premises, they submitted that the potice and the prosecution had ample time to obtain a search warrant as required by the [aw.

Further, at the triat, the learned triatiudge retied on State vs. Atison 298 Ne R5, 257 SE 2D 417(1979) which is distinguishabte from the current case. More so section 6(2) apptied where a person is in possession of anything found on the person who has been arrested. None of the witnesses including the investigating officer gave a reason why they searched without a search warrant. lt is the appellant's submission that the triat judge was specutative in his decision when he hetd that the evidence of PW2, PW6 and PW25 the prevaiting circumstances were such

that instant response had to be given to a situation that had presented itsetf. Further, the triat judge misdirected himself when he hetd that the "search and subsequent seizure was lawfu[. The appettants content that section 28(3) of the CMA does not permit a potice officer or a person not 35

- authorised within the meaning of the terms "authorised officer" to $\mathsf{S}$ conduct a seizure and extraction of electronic evidence from a computer system without the pre-requisite search warrant. They appellants relied on McDonald V. United States, 335 U. S. 451 69 S. ct.191, 93 L. E. D 153(1948). Where when allowing McDonald's motion for suppression of evidence - and returning of the properties, the justices of the supreme court held 10 that:

"We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home".

They contend that the learned trial judge heavily relied on the evidence 25 adduced by PW1, PW2, PW10 and PW26 which did not meet the requirements of Section 28(3) to convict the appellants. That in Morgans V Director of Public Prosecution [1999] 1. W. L. R 968, Justices (Kennedy L. J and Sullivan) allowed Morgan's appeal in respect of all five charges under section 1(1) unauthorised access of the Computer Misuse Act, 1990 30 on ground that these charges had been brought against him when they were out of time.

The appellants submitted that "authorised officer" under section 28(9) of the Computer Misuse Act, 2011 is defined as; "a police officer who has

obtained an authorizing warrant under subsection (1). They submitted 35 that from PW1 -26 none were authorised officers and none of them followed the investigation procedures that are set out clearly by the law under section 9, 10, 11, 28(3) and 28(8) of the Computer Misuse Act, 2011.

$\mathsf{6}$

- The appellants argued that the legislature intended to treat a search of a $\mathsf{S}$ computer system without a warrant as unlawful and therefore the evidence acquired in unconventional form is inadmissible, illegal, null and void. Further, that PW2 Mr. Mwebesa Bruno, a Uganda Revenue Authority Officer who arrested and conducted the search on A1, A2, A3 and tendered exhibit P.4 (Certificate of search) testified that that $10$ Kayemba Isaac (PW10) also URA staff gave him instructions to do so and not the police. Further, detective Inspector Joseph Elyanu in his cross examination testimony said that he never had a search warrant when he searched and seized the 2nd appellant. - It was the appellants' submissions that the trial judge misdirected 15 himself when he convicted the appellants on the basis of the electronic evidence extracted without a warrant and the appellants relied on NSSF & Anor vs. Alcon International Limited CA NO. 15 of 2009 page 46-47 and Hon. Sam Kuteesa & Anor vs. AG (Constitutional reference No. 54 of 2011) [2012] UG SC 2 to support their claim for exclusion of evidence. $20$

The appellants submitted that the electronic evidence seized and samples or copies of application or data extracted without a search warrant are inadmissible and the learned trial judge ought not to have relied on any them since they were illegally obtained. They contend that this touches the core of the prosecution evidence (See Chalangat Andrew Milton 7 others vs. Uganda CA No. 11 of 2012 and Makula International Ltd

**Vs. His Eminence Cardinal Nsubuga & Another (1982) HCB 11.)**

The appellants also contend that the prosecution evidence was widely fabricated and unauthentic. It followed the unlawful seizure and extraction of electronic evidence, the prosecution preferred in evidence several electronic records as exhibits.

In relation to Exp. P.1 and P.2 the prosecution had under Section 29(2) CMA the burden to prove that the exhibits were authentic which evidential burden they did not discharge as they had formatted the URA computers from which they purport to have obtained the log and images.

35 It is the learned trial judge erred to rely on the testimony of PW1 and exhibit P.1. The trial judge ought to have found that Exp. 1 and Exp. 2's source did not actually exist.

- 5 0n exhibit P.3 PW1 testified that he did not print the chals and the question was what the source of these chats are or is? Who printed them? How did that person get them? Who is that person? They contend that the person ought to have been subjected to cross examination on the authenticity of the exhibit. lt foltowed that the state did not prove its - authenticity as required by the law and it was erroneous for the learned triat judge to heavity rely on it to convict the appetlants. They contend that retiance on the fabricated evidence to convict the appetlants was not onty unjust but atso ittegat and contrary to public policy. (see Farm lnternational Ltd, Ahmed Farah vs. Mohamed Hamid Farih Civit Appeat 10 - No. 16 of 1993, and Makula lnternational (supra), Christ for al[ Nations vs. Apollo lnsurance 0o. Ltd (2002) 2 EA i65 that ittegatity cannot be sa nctioned by court). 15

The appellants submitted that the triat judge erred to rety on PW'l and PWl0's evidence to convict the appettants, yet they failed to authenticate

their etectronic evidence (exhibits) and the question is how authentic Exp. 2L, 25 and Exp. 26 were? Further, that without authenticity the reports from the alleged mirror images and primary hard disks leaves court with no evidence as what is contained in the report is what actually is in the primary hard disks, untawfulty extracted. Further, the appettants/defence were not given a chance to analyse these mirror images which were atlegedty made/ produced with the state's software choice Encase on which the state had monopoly to the prejudice of the 20 25

defence. 30 Appellants invited court to suppress this evidence and to hold that it was wrongty retied on and exercise the duty of this court to evaluate the

evidence and reject the same.

The appeltants atso cha[[enged the chain of custody, which was preferred in evidence (Exp. 23) as fabricated with an aim to impticate the appe[[ants. The appellants concluded that there was g[aring evidence on record that prosecution's exhibits Exp. 1,2,3,8,9,10,24,25,26,36,37,38 and 39 were seized and extracted contrary to the provisions of the [aw, and further, they were fabricated and unauthentic and invited the court to suppress the evidence contained thereon. They pray that that court altows the appeat on this ground and acquit the appettants.

On ground 1, the respondent's counsel submitted in reply that the major $\mathsf{S}$ complaint of the appellants is that the prosecution did not comply with Section 28(3) of the CMA when they searched and seized computers and other items without a search warrant. However, Section 7 EACCMA clothed the respondent with such power as envisaged in Criminal Procedure Act cap. 116 and The Police Act and Section 6 (1) (b) Criminal 10

Procedure Code Act (CPCA).

The respondent submitted that it would defeat logic to arrest the 1st appellant and the group, recover the hacking implements and then look for a search warrant as the appellants seem to suggest. The respondent maintains that it does not accept the submission of the appellants that electronic evidence is prone to alterations, modifications and fabrication where improper or unlawful search and seizure is employed. That according to the testimony of PW10 electronic evidence and image acquisition cannot be altered, modified or fabricated.

The respondent's submitted that the evidence of PW1 was corroborated 20 by PW11 that the $2nd$ appellant was employed by URA.

Further that the learned trial judge was right to rely on the electronic evidence because integrity of the evidence was never compromised and all the evidence was corroborated.

The Respondents counsel submitted that the argument of the appellant 25 that the enforcement officer who conducted the arrest and subsequently searched the appellants was not an authorised police officer was erroneous as the officers were authorised under section 7 of the EACCMA. In the premises the respondent's counsel submitted that ground 1 of the appeal is misconceived and ought to fail. 30

The appellants in rejoinder submitted that Section 28 of the Computer Misuse Act is clear and unambiguous that seizures, searches, extractions and samples taken and copies of data taken can only be done only by virtue of a search warrant. Further that it is not in dispute that

the respondent had no search warrant to conduct the search and seizure 35 of the computer systems as required by the law. - 5 The appettants submitted that Section 7 of the East African Community Customs Management Act can onty be invoked the Act and not under the Computer Misuse Act (the CMA). The Appe[[ants reiterated eartier submissions and further submitted that Section 158 (l) of the EAOCMA also requires a URA officer to obtain a search warrant to conduct searches. The appettants further reiterated eartier submissions on Section 28 (9) of the CMA. The appe[[ants further re[ied on Van der Merwe Et At lnformation and eommunication Technology Law 85, for the proposition that a traditionaI requirement for proving the integrity of evidence is the chain of custody and that; 10 - "the prosecution needs to convince the court that the evidence was not interfered with from the time it was seized to the presenlation in court. lt is therefore critical that forensic investigations shoutd ensure that digitat evidence remains secure throughout the anatysis.' 15 - Further, section 9 of the Computer Misuse Act which dea[s with preservation orders pending investigations, section 10 of the Computer Misuse Act which atlows app[ication for disclosure of preserved orders and section 11 of the Computer Misuse Act which allows orders of production of data stored in a computer system and to give access to the system, were not complied with by the respondent. For precedents on Articte 27 of the Constitution of Uganda (See Hon. Sam Kuteesa & Anor vs. AG (eonstitutional reference No. 54 of 20111120121UG SC 2) The appettants prayed that the court treats sections Section 7 EAeeMA and Section 6 OPA as void to the extent of inconsistency with the constitution and the CMA. 20 - 30 Further the appettants submitted in rejoinder that A'1, A2 and A3 were [icenced ctearing agents and were at URA premises tegatty. Secondly that that the respondents ctaimed to have discovered this in January, 2011 and the arrests were in June, 2012 and therefore the respondents had ample time to obtain a search warrant and [astty that with the evidence - of forensics that data cannot be erased permanent, there should be no notion that the accused/ appettants woutd change anything. The appettants reiterated submissions on McDonatd V. United States,3il5 U. S. 451 69 S. ct.19l, 93 L. E. D 1530948) for the proposition that evidence obta ined illegatty was inadmissible. 35

The appellants further reiterated submissions that there were serious 5 fabrications and alterations in Exp. 3, Exp. 23 and Exp. 38 to implicate the appellants and this submission was not challenged by the respondents in their submission.

## Ground 2

The learned trial judge erred in law and fact when he convicted the 10 appellants without the prosecution disclosing the Encase software forensic tool used and mirror images analyses to the defence, as required by the law thus occasioning a miscarriage of justice.

The appellants submitted that the prosecution failed to discharge its legal obligation to disclose to the defence the prosecution's chosen Encase 15 software forensic tool and mirror images. PW1 did not testify that he created a forensic copy using Encase, which copy was never tendered in evidence or disclosed to the defence nor does this form part of the summary of the case. They submitted that PW10 testified that he imaged the disks using Encase software tool meaning all those images were in $20$ Encase format. That PW 17 testified that she was called on the 25th July, 2012 to the tax investigation department to view forensic images of the two laptops and the one external disk.

- They further submitted that PW20 testified that he analysed from images made by the Encase software tool. PW1, PW10, PW17 and PW20 made their 25 analysis and produced various reports from the said mirror images, a creature of PW10. To that effect, Exp.1, Exp. 2, Exp.24, Exp.25, Exp.26, Exp.35, Exp. 36, Exp. 37 and Exp.38 were tendered in evidence. The mirror images were never tendered in evidence or disclosed and the appellants never got a chance to analyse these said mirror images. This defeated 30 the ends of justice as the appellants were in custody through the entire trial and could not access these tools for their defence. The prosecution never availed the Encase software tool and mirror images to the defence which cast doubt on the scientific validity of the electronic evidence. The - Appellants relied on State vs. Dingman, 202 p. 39 388(WAH. CT. APP.2009) 35 quoting State vs. Boyd, 160 WASH. 2d at 433-34, 158 p.3d 54(2007), The justices of appeal reached a decision that; "in sum, we conclude that the trial; court erred by the requiring that the state provide only an Encase

- mirror image of Dingman's hard drives to the defense. The remedy is to $\mathsf{S}$ *reverse and remand for a new trial".* In the instant case the defense never had any opportunity to access Encase software tool and to analyse the mirror images to prepare for their defence which was a grave error to the prejudice of the defence case. - The prosecution also relied on **Thomas Patrick Gilbert Cholmondeley Vs.** 10 **Republic Criminal Appeal No. 116 Of 2007, the justices of the Kenyan court** of appeal cited the decision in R vs. Ward [1993] 2 All ER 557 for the holding that; - "The prosecution's duty at common law to disclose to the defence all relevant material, i.e. evidence which tended either to weaken 15 the prosecution case or to strengthen the defence, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing 20 so. Furthermore, the prosecution was under a duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material, whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made a specific 25 request for disclosure. Pursuant to that duty the prosecution was required to make available the records of all relevant experiments and tests carried out by expert witnesses". - The petitioners submitted that despite the gravity of the charge against 30 Ward, the Court of appeal in England still allowed her appeal, quashed the various convictions against her and set her free. They submitted that failure by prosecution to disclose the Encase software and mirror images disabled the ability of the defence to make answer and defence - and this rendered the trial null and void. That this material irregularity 35 violated the appellants right to a fair hearing under Article 28 of the constitution of Uganda and which right is non derogable occasioning a miscarriage of justice. They prayed for court to allow this ground and quash the conviction of the appellants.

In reply to ground 2 the respondent's counsel submitted that the computers were recovered from the suspects upon arrest and the extraction of the hard disks from the computer was done in the presence of the appellants who witnessed the same in a forensics lab. Further the reports extracted from the exhibits (computers) was disclosed to the $10$ defence before hearing of the witnesses and relied Soon Yeon Kong & Anor Vs. AG Constitutional Reference No. 6 of 2007 for the proposition that the prosecution complied with the law and disclosed all the evidence to the defence as required. Further the demand of the appellants for the forensic tools would be superfluous in the circumstances as they had $15$ already been given all the necessary reports and evidence extracted in their presence. Whatever documents were not disclosed to the defence were objected to and not received in evidence. The respondent submitted that in the premises ground 2 of the appeal is misconceived and ought to fail and / or to be answered in the negative. $20$

The appellants submit in rejoinder that the reports generated from a scientific process by the help of the encase software tool producing mirror images which were analysed solely by the respondent and the appellants not being given a chance to find out how this evidence made its way to the alleged hard disks. This denied the appellants an $\overline{25}$ opportunity to challenge the evidence adduced and make a full answer (See R vs. Ward [1993] 2 All ER 557 to support the argument that providing a copy of the image and encase tool would have enabled the appellant to get an expert and this would have revealed how the evidence made its way to the computer. Failure to do this occasioned a miscarriage of 30 justice). The appellants submitted that failure to disclose the mirror images and encase forensic software tools rendered the trial a nullity and void. The appellants pray that this court rejects the respondent's response because it lacks legal support. Further ordering a retrial would occasion a miscarriage of justice since the appellants have served part 35 of their 15 months' sentence.

## Grounds 3 and 5

$\mathsf{S}$

- 5 The appetlants argued grounds 3 and 5 jointty and submitted that on counts 1,3,4 and 5 the learned triat judge misdirected himself in evatuating evidence as a whote on record and ignored the major inconsistences, contradictions, and fabrications in the prosecution evid e nce. - The appetlants factored out Exp. 8 (Samsung taptop), Exp. 9 (Lenovo taptop), Exp.10 (externat hard disk) and Exp.39 (Delt taptop). 10

These computers were attegedty recovered from the appettants who have demonstrated in ground I that they were unlawfu[[y seized. Further, the evidence of PW5 and PW26 demonstrate that these items were seized without a search warrant as eartier submitted. Further the computers

The appellants submitted that the evidence of PW 6 is that he had custody of EXP.8, EXP.9, EXP. I0 and he was instructed by Nakyagaba (PW 26) to hand them over to PW l0 who attegedly took custody and returned them

were not returned within 72 hours as required by the [aw.

- on the 3Oth June, 2012. PW6 testified that he was not present when PW l0 was opening the [aptop and removing the hard disks. According to the appellants PW 6 tost sight of the exhibits and this raised a question as to whether the exhibited hard disks are actuaI hard disks that were inside the atteged taptops. Further, PW6 testified that he coutd not confirm that 20 - the hard disks that he tendered in court were removed from any of the respective taptops. Further Exp.4 ctearly reftect that none of the hard disks were recorded from the I't appe[[ant. He testified that he did not know what happens or what happened in the [ab and strongty objected to the admissibitity of the hard disks. ln the premises, the appellants 25 - contend that the learned triat judge misdirected himself on the movemenl of these exhibits in his judgment. That whereas the triat judge tisted these items as received from PWl0 to PW6 there is nowhere in the testimony of PW6 that the exhibits were extracted in his presence nor did he admit that he gave both the taptop and the hard disks to PWl0. They 30 - submitted that PWl0 coutd not have analysed the mirror images on 27107/2012 before he had acquired them on 28/07/2012. PW10's evidence that he took the Samsung hard disk to south Africa for removal of password and imaging was without a warrant or order of court as required by taw. Further, the appettants submitted that the prosecution 35

did not bring the south African witness who acquired the images and the $\mathsf{S}$ judge simply relied on the evidence of PW10 and convicted on evidence that was extracted without the perquisite search warrant.

The appellants argued that since URA had formatted the computers which were not produced in court, there is no way the court can ascertain that there was unauthorised access to the URA computer systems. Because of the inconsistences in the evidence adduced by PW10, PW17 and PW20 and no forensic report was done on all URA computers and none was tendered in evidence the learned trial judge ought not to have relied on the evidence.

Further, the appellants submitted that the learned trial judge misdirected 15 himself on the evidence on record to that it was the 1st appellant who gave the cards to PW8 and pinpointed out the evidence of PW4 and isolated PW8, PW3, PW5's testimony and did not properly evaluate the evidence on record. The appellants submitted that there were inconsistences in

- the testimonies of PW3, PW 5, PW 8, PW4, PW10 and PW17 and had the $\overline{20}$ trial judge considered all evidence and not just the cross examination testimonies, he would have noticed the inconstancies and arrived at a different conclusion. He would have found that the witnesses of the prosecution were telling lies and had fabricated evidence to achieve their - goal of circumstantial evidence that was adduced by PW1, PW10, PW17, 25 PW18 and PW20 to incriminate the appellants. The appellants relied on Twehangane Alfred vs. Uganda Criminal Appeal No. 139 of 2001 for the proposition that inconsistencies lead to rejection of evidence and prayed that the court allows the appeal on this ground and acquits the appellants. 30

The respondents counsel submitted that the court established a prima facie case against the appellants and the trial judge proceeded to explain the options available to the appellants who opted to keep quiet and the only evidence that was available for analysis was that of the prosecutions' twenty-six witnesses.

Further the evidence presented by PW1 was obtained before the arrest of the appellants and was submitted as independent evidence. That the piece of evidence that linked the appellants to the commission of the

- 5 offences was provided by PW'I0. The other evidence that tinked the appettants was the evidence of PW4, PWl2, PW'I3, PW18 in addition to circumstantiat evidence that was adduced that implicated the appettants tike the arrest of the l't appetlant with others near URA and the recovery of hacking imptements, purchase of spy hardware, presence of the emaiI - chats between the appettants in the audit logs recovered in the URA servers among other things. 10

The respondent retied on Simoni Musoke vs. R [1958] E. A 715 and Bogere Charles Vs. Uganda, SOCA NO. l0 of 1998 for the proposition that conviction can be based on circumstantiaI evidence. ln the premises, the

respondent's counsel submitted that the triatjudge rightty and effectively evaluated evidence and rightty convicted the appetlants. 15

ln rejoinder, the appetlants submitted that the burden of proof does not shift throughout the triat even on appeal. Further the email bmugis[aura@gmail.com which was used to incriminate the appellants

was never owned by the appetlants and were mere allegations that tacked evidence. Further emaits address rbyamukama@gmait.com and gu xzguster@gma i[.com were atso contested through Exp.3 that the appettants contend was a fabricated document obtained in unconventionat form by PWI who claimed to have hacked the same and nowhere do the appettants admit that they owned the emails. 20 25

With reference to the respondent's submissions on PW 10's testimony and especiatty the contents of the reports Exp. 24, 25 and 26 the appettants submitted that these reports are fut[ of fatsehoods and fabrications and were obtained in unconventionaI form to that extent,

they are inadmissible. 30

> The appettants further contest the testimony of PWl7, PW4 and PW3 as being untruthfut and witnesses having been coached. The pray that the court to be pteased to reject the response of the respondent on ground one and attow grounds 3 and 5.

## Ground 4

The learned trial judge erred in law when he commenced the trial and $\mathsf{S}$ convicted the appellants without the assessors taking oath contrary to the provisions of the law, thereby occasioning a miscarriage of justice.

The appellants submitted that the learned trial judge tried and convicted the appellants without the assessors taking the oath of impartiality before taking on their role in breach of Section 67 of the Trial On $10$ **Indictment Act.** They submitted that the legislature intended the taking of oath by assessors to be a mandatory prerequisite in the trial process. Further Section 3 of the TIA requires the number to be 2 or more and that the participation of assessors is vital and mandatory and failure to comply goes to the legality of the trial which cannot be cured by Section $15$ 139 if the TIA. The appellants relied on Alenyo Marks vs. Uganda SCCA NO. 08 of 2007 for the proposition that a trial which proceeds without assessors taking oath is a nullity (See also Abdu Komakech vs. Uganda SCCA. NO. 1 of 1988). Similarly, the appellants submitted that another illegality was that one assessor concluded the trial and had not taken 20 oath. They pray that the court acquits the appellants and quashes their conviction and sentence.

In reply to ground 4 the respondent's counsel submitted that there was no miscarriage of justice occasioned on the appellants as the two assessors were present throughout the entire trial. At a closer perusal 25 of the record shows that on the 19/12/2012 that both assessors were present and a summing up by the trial judge was done. Further it would appear that the record was not put in a proper manner and be that as it may, there was no miscarriage of justice occasioned on the appellants by reason that the advice opined by the assessor was based on full 30 attendance of the hearing of the case (See Sitende Sebalu vs. Sam K. Njuba and the Electoral Commission SC Election Appeal No. 26 of 2007.)

Further, counsel submitted that Section 67 TIA given the circumstances of this case has to be construed as directory and not mandatory. The respondent's counsel further relied on Article 126 (2)(e) of the 35 **Constitution** and submitted that justice should be administered without undue regard to technicalities. In the premises, counsel contended that failure by the assessors to take oath or failure to record that the assessor took oath did not affect the rights of the appellants. From the

- time of arraignment, the appellants pleaded not guitty, they were futly represented and their lawyers extensivety cross examined the prosecution witness and, in the end, based on evidence, the assessor advised the triatjudge to acquit some of the accused persons which the judge did based on reason and evidence adduced during triat' ln the - premises, counseI prayed that ground 4 shoutd be dismissed. 10

ln rejoinder the appettants submitted that it is an ittegatity for assessors to operate without taking oath as required by law and reiterated earlier submissions.

## Ground 6

The tearned triat judge erred in law and in fact when he convicted and sentence the appettants twice for the same offence. 15

The appetlants argue that being charged on counts l-4 of the CMA and count 5 from the EACCMA, 2004 was doubte jeopardy. They contend that court imposed more than one punishment for the same offence contrary

- to Articte 28 (9) of the constitution of the Repubtic of Uganda. They cited to the case of State vs. Reiff, 14 wash 664,667,45 P.38 0896) for the'same evidence test "at 667 (quoting Morey vs. Common Wealth, 108 MASS, 4f,, 4j4 (187A). The appettants submitted that the ingredients of the offences they were charged under the Computer Misuse Act when read together 20 - with Section 3 teads to the conctusion that the offences are inseparabte and intertwined. They submit that unauthorised use or interception contrary to section 15(l), Unauthorised access to data contrary to section 12(2), unauthorised access to customs computerised system contrary to section to 191(1)(a), unauthorised access contrary to section '12(3) and 25 - electronic fraud contrary to section '19 are atl directed at the same act or conduct and onty differ in their result by the conduct. When unauthorized access teads to a conviction in all offences, the offences are the same in the circumstances. They submitted that the judge erred when he convicted and sentenced the appeltants to the same offences contained 30 - in counts 5,'1,3,4, and 2 and this exposed the appettants to double jeopardy in viotation to Artic[e 28(9) of the constitution. The appe[[ants rety on State Vs. PotterSl WASH APP.8&!, 887-88, 645 P 20 60(1982) and 35 Criminal Appeal No. 037 of 2017, Patrick Sentongo vs. Uganda for this $\mathsf{S}$ submission.

The appellants pray that the court allows this ground, quashes the conviction in count 5 and vacates the sentence therein.

In reply, the respondent's counsel submitted that the appellants argued that they were charged, convicted and sentenced under the CMA and the $10$ EACCMA for the same offence. The respondent's submission is that this is lawful under Section 23 of the TIA Cap. 23.

Further all the necessary evidence to sustain all the charges was presented and evaluated by the trial judge, who convicted and sentenced the appellants and where the evidence was not sufficient the judge acquitted A2 and A3.

In the premises counsel for the respondent contends that the argument of the appellants on ground 6 is spurious, misplaced and ought to be rejected by this court and the ground dismissed.

In rejoinder the appellants submitted that the trial judge in convicting the 20 appellants on counts 1 and 5 erred in principle and the learned trial judge in giving a consecutive sentence of a fine of US\$ 4500 erred in law. The appellants reiterated earlier submission on ground 6.

## Ground 7

The learned trial judge erred in law and in fact in ignoring and allowing 25 the illegal conduct of the Uganda Revenue Authority to prosecute, investigate the appellants made foreign to the known legal modes of commencing prosecution thereby occasioning a miscarriage of justice.

The appellants submitted that there are three main requirements of natural justice which ought to be met in every case. These are adequate 30 notice, fair hearing and no bias and that these are enshrined in Article 28 of the constitution. In the instant case URA made the arrests, investigations and prosecuted the matter. They contend that this was illegal, unconstitutional and violated the right to a fair hearing of the

appellants. 35

5 The appe[[ants submitted that there was no fair triat accorded to the appeltants and pray that court rejects the evidence and witnesses on grounds of fa irness.

They also relied on Section 7 of the East African Gommunity Customs Management Act and submitted that that the powers thereunder can only be exercised under the EACCMA and not the CMA and such powers cannot in any way override the constitution and the laws of Uganda.

They reiterated submissions that URA officers are not police officers under section 28 of the CMA. Further they contravened constitutional provisions including Article 120(5) and Article tZ0(4)(a) of the Constitution that empowers the DPP to authorise any person to act on his behatf in accordance with "general or specific instruction' but does not cover investigations as done in the appettants' case. ln R vs. Horseferry Road Magistrates Ex parte Bennet (1994) I A. C.42 where the lords stated:

The judiciary accept a responsibitity for the maintenance of the rute of taw that embraces a wittingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rute of taw. (authorities in the fietd of administrative taw contend) that it is the function of the High Court to ensure that executive action is exercised responsibty and as Parliament intended. So also shoutd it be in the fietd of criminaI taw and if it comes to the attention of the court that there has been a serious abuse of power at shoutd, in my view, express its disapprovat by refusing to act upon it. ... The courts. of course, have no power to appty direct disciptine to the potice or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution'. 20 25 30

35 The appettants contend that it was erroneous for the learned triat judge to hold in his judgement that'the signature of the person authorised lo sign for the DPP suffices and there shou[d be nothing amiss". That the learned trial ludge erred in attowing the ittegat conduct of URA and occasioned a miscarriage.

ln reply, the respondent's counsel submitted that the prosecutor Mary Kamuli Kuteesa was at al[ times [icensed to prosecute the appettants by

AO the Director of Pubtic Prosecutions. The DPP has authority to detegate to

5 an officer power to act on his or her behatf except in matters where the law expressly requires the consent of the DPP' The appettants'argument that URA acted ittegatly is misconceived and ought to be rejected and this ground ought to f ait.

ln rejoinder, the appettants submitted that the argument is about URA being tegatty authorised to prosecute, investigate the appellants and the same time be the comptainant but there was no challenge to the powers of the DPP. The respondent faited to provide to court the scope of their authority and/ or instructions which the appeltants cannot force them to do. The burden squarety lay on them which burden was not discharged' That secondty that URA is not a gazetted investigalor and they were the ones in charge of the investigations inctuding the forensic anatysis making them partisan in the case and this defeated the ends of justice. 10 15

## Ground 8

The learned triat judge erred in law and in facl when he convicted the appeltants passed excessively harsh sentence against the appetlants on count 2 and count 5. 20

The appettants argued that l2 years'imprisonment on count 2 and a fine of US\$4500 imposed on count 5 are manifestty harsh. While sentencing is at the discretion of the triat court, it must be exercised.iudiciousty and not capriciousty. The seriousness of the offense was mitigated by facts the appettants presented in their mitigation statements. Appeltants invited the court to consider its decision in Nisiima vs. Uganda, eAeA N0. 8 OF 2010, where it was held that courts should take into account past precedents of court on sentencing. (See cases of Adam Jino vs. Uganda (2010) eAeA NO. 50 0F 2006, Kenneth Kaawe vs. Uganda CA No' 103 of 2011, Rwabugande Moses vs. Uganda CA N0. 25 ol 2014 and section l5(b) of the Gonstitution (Sentencing Guidetines for Gourts of Judicature) (Practice) Directions, 20R). 25 30

The appettants invited court to consider the principle of consistency in sentences for simi[ar offence as hetd in Livingstone Kakooza vs. Uganda, SC9A NO. l7 of 1993 and in Serunkuma Edrisa & 5 others 9A. N0. 147 of 2015 and Aharikunda Yustiina vs. Uganda SCCA N0' 27 ol 2015. 35

5 The appeltants prayed that this court exercises its discretion and reduces the sentence in count 2 and to a sentence of 7 years' imprisonment as appropriate. Further on count 2 the sentence ought to be reduced to enabte the appellants reform and be reintegrate in society.

The appettants pray that the appeaI is altowed and the conviction and sentence be set aside or in the alternative the sentences in count 2 and 5 be reduced in the interest of justice. 10

ln repty, the respondent's counsel submitted that the senlences passed are vatid sentences and the learned triat judge considered the aggravating and mitigating factors. The triat judge was alive to the fact that the appettants had spent one year on remand and deducted the

period spent on remand. The sentence was with the intention to reform the appeltants. The tearned trial judge atso considered the fact that the appettants were relativety young and they had young families and were remorsefu[. The judge also considered the tremendous loss to the exchequer of URA and compromised security systems of the country and 15 20

the judge was right to reach the conclusion he did.

ln the premises, counset prayed that this ground ought to fait and the appeat be dismissed and orders of the triaI court be uphetd.

ln rejoinder, the appeltants reiterated their earlier submission and added that they appeated against the sentence for only counts 2 and 5.

They further submitted that section I9 of the MCA (count 2) does not fa[[ under those penalties prescribed in Section 20. The respondent's submission that count 2 carries a maximum sentence of life imprisonment is misconceived. Section l9 of the CMA (on count 2) carries

a maximum of l5 years' imprisonment. 30

> The appettants further contend that the triatjudge was manifestly harsh on count 2 and count 5 when he did not consider the mitigatinq factors' That the sentences handed down in counts 2 and 5 were not reformatory and that this court be pleased to reduce the sentences on the 2 counts.

## 5 Resolution of Appeat

10 15 20 This is a first appeat from the decision of the High Court in the exercise of its originat jurisdiction and we are to reappraise the evidence on the printed record of appeal by subjecting it to fresh scrutiny and arriving at its own independent inferences of fact. A first appellate court shoutd be cautious of the fact that it did not have the opportunity or advantage of hearing the witnesses testify and to treat with deference the observations of the trial judge on matters of credibitity of witnesses where it is in controversy (See Pandya v R [957] EA f,16, Selle and Another v Associated Motor Boat Gompany [968] EA 123, on the duty of a first appettate court by the East African Court of Appeat and the decision of the Supreme Court of Uganda in Kifamunte Henry v Uganda; SCGA No. l0 of 1997). The duty of court to reappraise the evidence is enabte by rute 30(1)(a) of the Judicature (eourt of Appeat Rutes) Directions, S.l No. R-10, which provides that on appeaI from the decision of the High Court in the exercise of its originaI jurisdiction, the court may reappraise the evidence and draw inferences of fact.

25 30 Grounds I of the appeat chaltenges the admission of evidence obtained from computers, ftash discs and hard drives seized and searched by the officiats of URA without due process provided for under section 28 of the Computer Misuse Act, 201l as wett as artic[e 27 of the Constitution' The evidence formed the core of the prosecution case and is pivotal in consideration of this appeat and therefore ought to be considered first. lf this ground succeeds, issues relating to evaluation of evidence would be

affected and considered according to the outcome of the case.

Ground I of the appealarises from the decision of the learned triat judge when the appettants objected to admission of computer generated evidence for non-comptiance with section 28 of the Computer Misuse Act, in so far as the computers which was used to obtain information used in the prosecution was seized and searched without a search warrant. The tearned triat judge considered article 27 of the Constitution which guarantees the right to privacy and whether such derogation to the right of privacy by seizing the computer without a search warrant,

- 5 was justifiabte under articte 43 of the Constitution which provides that the fundamentat rights and freedoms of the individuaI shou[d not be exercised to the prejudice of the pubtic interest or the fundamentaI or other human rights and freedoms of others' He found that it was necessary to batance these interests particutarly in tight of section 6 (2) - of the Criminal Procedure Code Act which provides that a public officer may search any person who has been arrested and may take possession of anything found on the person which might reasonably be used as evidence in any criminat proceedings. Further, the learned triat judge was persuaded by judiciat precedents from USA which consider the 10 - batancing of the pubtic interest and the fundamentaIand other freedoms of the individuat Vis-i-vis the right to privacy (See GM. Leasing eorp Vs United States, A29 U. S.3i18.352 - 53, 355; McDonald Vs United States, f,15 U. S. 451, 456 (1958)) for the provision that exceptions to the requirement for search warrants are generously and carefu[[y drawn 15 - and that those who seek exception to the requirement should show that the exigencies of the situation make the course imperative). Further that a search without a warrant was not unconstitutionaI when probable cause exists and the government satisfies its burden of demonstrating that the circumstances of the situation made it imperative. He found that 20 - if section 28 (3) of the Computer Misuse Act is apptied to the letter, it woutd have a chitting effect on the enforcement of the law literatty making law enforcement agencies powerless in certain situations. He found that certain exceptions must be made where evidence shows the exigencies of the situation coutd not await a search warrant. Lastly the 25 - learned triaI iudge held that: 30

"given the evidence of PW2, PW3 PW6 and PW26 the prevailing circumstances were such that instant response had to be given to a situation that had presented itsetf. They did not act unreasonabty in the circumstances and as such I hotd the search and subsequent seizure done on the occasion of the arrest of Al, A2 and A3 to be tawfut."

From the hotding, the tearned triat judge admitted certain [aptop computers and the externaI hard drives and hard disks whose stored information had been used in investigation and evidence' Further these laptops and hard discs had been subjected to computer forensic anatysis

after the seizure and the evidence was used in the prosecution. 40

Section 28 of the Computer Misuse Act 20'll deals with searches and seizure. lt provides under section 28 (3) that: 5

> 'A computer system referred to in subsection (2) may be seized or samptes or copies of apptications or data may be taken, onty by virtue of a search warrant.'

It is not in dispute that computers and hard drives which were used as evidence against the appettants were seized without a search warrant. 10

One basic rule of interpretation of statutes is that every statute has to be read on the basis of its own tanguage before deating with any other issue (See Latt v JayPee lnvestments Ltd R9721 E'A. 512 at page 516 where the East African Court of Appeat cited with approvaI the hotding in Attorney Generat Vs Prince Ernest Augustus of Hanover, [95I AG 436 for the proposition that; 'each statute has to be interpreted on the basis of its own [anguage as words derive their cotour and content from their context; and secondly, the object of legislature is of paramount imporlance...' ). lt is therefore necessary to first examine the wording of the Computer Misuse Act on the subject of "search and seizure'and the object of [egistature in its enactment.

Section 28 of the Computer Misuse Act 20ll provides that:

28. Searches and seizure.

(l) Where a Magistrate is satisfied by information given by a police officer thal there are reasonable grounds for believing- 25

> (a) that an offence under this Act has been or is about to be committed in any premises, and

(b) that evidence that such an offence has been or is about to be committed is in those premises, the Magistrate may issue a warrant authorising a potice officer to enter and search the premises, using such reasonable force as is necessa ry.

> (2) An authorised officer may seize any computer system or take any samptes or copies of apptications or data-

(a) that is concerned in or is on reasonable grounds betieved to be concerned in the commission or suspecled commission of an offence, whether within Uganda or etsewhere; 35

5 (b) that may afford evidence of the commission or suspected commission of an offence, whether within Uganda or etsewhere; or

> (c) that is intended to be used or is on reasonabte grounds believed to be intended to be used in the commission of an offence.

(3) A computer system referred to in subsection (2) may be seized or samples or copies of apptications or data may be taken, onty by virtue of a search warrant.

(4) The provisions of section 7l of the Magistrates Court's Act appty with the necessary modifications to the issue and execution of a search warranl referred to in subsection (3).

(5) An authorised officer executing a search warrant referred to in subsection (3), may- 15

> (a) at any time search for, have access to and inspect and check the operation of any computer system, apptication or data if that officer on reasonabte grounds betieves it to be necessary to facilitate the execution of that search warrant;

> (b) require a person having charge of or being otherwise concerned with the operation, custody or care of a computer system, app[ication or data to provide him or her with the reasonabte assistance that may be required lo facititate the execution of that search warrant; and

(i) to cottect or record through the apptication of technicaI means; or

(ii) to co-operate and assist the competent authorities in the cotlection or recording of traffic data in reaI time, associated with specified communication transmitted by means of a computer system.

- (6) ln seizing any computer system or taking any samptes or copies of apptications or data or performing any of the actions referred to in subsection (5), an authorised officer shall have due regard to the rights and interests of a person affected by the seizure to carry on his or her normat activities. 30 - (7) A person who obstructs, hinders or threatens an authorised officer in the performance of his or her duties or the exercise of his or her powers under this section commits an offence and is tiabte on conviction to a fine not exceeding twetve currency points or imprisonment not exceeding six months or bot h. 35 - (8) A computer system seized or samples or copies ol apptications or data taken by the authorised officer shatt be returned within seventy-two hours 40

unless the authorised officer has applied for and obtained an order in an inter party application for extension of the time.

(9) In this section $-$

"authorised officer" means a police officer who has obtained an authorising warrant under subsection (1); and

$\mathsf{S}$

"premises" includes land, buildings, movable structures, vehicles, vessels, aircraft and hover craft.

The following highlights should be set out for purposes of analysis of section 28 of the Computer Misuse Act. The first is that it is a magistrate who is supposed to be satisfied by information given by a police officer before issuing a warrant of search and seizure. The information expected 15 is to the effect that an offence under the Computer Misuse Act, is or is about to be committed in any premises. Alternatively, that such an offence has been or is about to be committed in the premises. It is upon the magistrate to issue a warrant authorising a police officer to enter and

- search the premises, using reasonable force. Further, an authorised 20 officer who is armed with a search warrant, may seize and take any computer system or take any samples or copies of applications or data on the grounds indicated. Particularly section 28 (3) provides that the seizure of computers or samples of copies of application or data may be taken only by virtue of a search warrant. Further, section 71 of the 25 - Magistrates Courts Act cap 16 is supposed to be applied with the necessary modification in that it provides that:

"Every search warrant may be issued and executed on Sunday, and shall be executed between the hours of sunrise and sunset; but the court may, by warrant, in its discretion, authorise the police officer or other person to whom it is addressed to execute it at any hour".

Section 28 (5) of the Computer Misuse Act deals with the inspection and access to the data. Last but not least, where computer systems seized 35 or samples or copies of application or data have been seized or taken, it is supposed to be returned within 72 hours unless the court extends the time in an interparty application. Specifically, the word "authorised officer" means a police officer who has obtained an authorising warrant. It is further necessary to note that under section 28 (9), the word 40 5 "premises" inctudes vehicles, vesse[s, aircraft and hovercraft as we[l as movable structures, buildings and [and.

The learned triat judge considered the right to privacy enshrined under articte 27 of the Constitution of the Repubtic of Uganda in relation to the right to seize under section 28 of the Computer Misuse Act and found that

- a balance between the right of privacy and the right of the pubtic interest and fundamentat and other human rights of other people was necessary to cater for situations where the warrant could not be obtained in time to carry out the seizure. Articte 27 of the Constitution provides that: 10 - 27. Right privacy of person, home and other property. - (l) No person shatt be sub.iected to - (a) untawfut search of the person, home or other property of that person; or (b) untawfut entry by others ol the premises of that person. - (2) no person shatt be subjected to interference with the privacy of that person's phone, correspondence, communication or other property. - 20

Ctearty there is a tension between the right of privacy and the right of the state and of state agencies to arrest any person who is about to commit an offence or who is committing an offence in terms of the right of seizure contained in section 28 of the Computer Misuse Act. The learned

25 triat judge relied on articte 43 of the Constitution to find that the seizure without a warrant was in the circumstances justified. Articte 43 of the Constitution provides t hat:

43. Generat timitation on fundamentaI and other human rights and freedoms'

(l) ln the enloyment of the rights and freedoms prescribed in this Chapler, no person shatt prejudice the fundamental or other human rights and freedoms of others or the pubtic interest.

- (2) Pubtic interest under this articte shatI not permit- - (a) potiticat pe rseculion; - (b) detention without tria [: - 35

(c) any timitation of the enioyment of the rights and freedoms prescribed by this Chapter beyond what is acceptabte and demonstrabty justifiabte in a free and democratic society, or what is provided in this Constitution

We have carefully considered the decision of the triaI judge on whether it was lawfut to admit the seized computer evidence pursuant to seizure

of the computers and hard drives and discs of the appellants without a $\mathsf{S}$ search warrant as stipulated by section 28 of the Computer Misuse Act. The first point to be made is that the decision did not rest on the express provisions of section 28 of Computer Misuse Act which gives the procedure to be followed which prescribes that a search cannot be conducted unless it is conducted by police officer who is authorised by $10$ search warrant. The Computer Misuse Act does not purport to be an Act to protect the privacy of anybody. The preamble to the Act provides that it is an act to make provision for the;

"safety and security of electronic transactions on Information Systems; to prevent unlawful access, abuse or misuse of information systems including computers and to make provision for securing the conduct of electronic transactions in a trustworthy electronic environment and to provide for other related matters."

It can be discerned from the decision of the learned trial judge that he considered section 28 of the Computer Misuse Act to provide for or $20$ enforce the right to privacy as proceeding under article 27 of the Constitution. It followed that he considered article 43 of the Constitution as justifying a search without a warrant on the basis of justifiable derogation from compliance with article 27 of the Constitution to the letter. Nevertheless, the preamble to the Computer Misuse Act is clear 25 that it is to provide for the safety and security of electronic transactions and Information Systems to prevent unlawful access, abuse and misuse of information systems including computers and to make provision for securing the conduct of electronic transactions in a trustworthy electronic environment and to provide for other related matters. It not 30 only provides for the right of privacy but also security of electronic transactions and Information Systems and prevention of unlawful access and abuse and misuse of Information Systems. The objectives of the Computer Misuse Act are wider than those found under article 27 of the Constitution in that it does not only enable protection of the freedom from 35 interference of home, property and communication but has other objectives. The computer Misuse Act 2011 is a relatively new Act in Uganda and has not been the subject of much jurisprudence particularly on the question of admissibility of evidence where such evidence is obtained unlawfully. It was erroneous and undesirable to link section 28 40

5 of the Computer Misuse Act with articte 27 of the Constitution without considering the context in which its laws enforce and perhaps, as we witl determine, ensure comptiance with articte 27 of the Constitution.

Secondty we have considered the reference to section 6 of the Criminal Procedure Code Act which provides for search of a person arrested and

10 stipulates that:

6. Search of person arrested.

(l) Whenever a person is arresled-

(a) by a potice officer under a warranl which does not provide for the taking of bait, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bait; or

(b) without warrant, or by a private person under a warrant, and the person arrested cannot tegatly be admitted to bait or is unabte to furnish bait, the potice officer making the arrest or, when the arrest is made by a private person, the potice officer to whom he or she makes over the person arrested, may search that person and ptace in safe custody a[[ artictes, other than necessary wearing apparel, found upon him or her.

(2) Notwithstanding subsection (l), a potice officer may search any person who has been arrested and may take possession of anything found on the person which might reasonabty be used as evidence in any criminal proceedings.

We have carefutty considered section 6 (l) of the CriminaI Procedure Code Act cap ll6. lt provides on[y for the searching of a person who has been arrested with or without a warrant of arrest. The person arresting may search that person and place in safe custody, at[ articles, other than

- necessary wearing apparet, found upon him or her. Ctearty section 6 (1) does not appty in the circumstances of this appeat. Second[y, lhe learned triat judge relied on section 6 (2) of the Criminal Procedure Code Act which provide s inter alia lhal the potice off icer may search any person who has been arrested and may take possession of anything found when 30 - the person which might reasonabty be used as evidence in any criminal proceedings. The expression "found on the person" seems to denote items found in possession of that person or on his or her body or around that person upon arrest. There is no need to exptore the extent of the apptication of the words "found on the person". Clearty this does not 35

apply to items or objects found in a house where the person is arrested $\mathsf{S}$ or in the premises as defined under the Computer Misuse Act. Notwithstanding, the items of computers and accessories could be seized in the circumstances and this does not per se amount to search of the computer or cell phones as demonstrated below. We find that seizure of an electronic gadget such as a computer or hard disc was not $10$ distinguished from search of the computer or hard disc in the judgment in the admissibility of electronically generated evidence. This is the crux of ground 1 of the appeal.

In McDonald v. United States 335 U. S. 451, 69 S. Ct.191; 93 L. Ed. 153 the petitioners had been convicted by the District Court on evidence obtained 15 by a search made without warrant. The decision was affirmed by the Court of Appeal and a petition for certiorari was brought seeking to nullify the order for inconsistency with an earlier decision in Johnson v, United States, 333 U. S. 10, 68 Ct. 367. Mr. Justice Douglas who delivered the judgment of court said that: 20

We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to the constitutional requirement and excuse the absence of a search warrant without showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made the course imperative.

Mr. Justice Jackson stated that: 35

> Even if one were to conclude that urgent circumstances might justify a forced entry without a warrant, no such emergency was present in this case. The method of law enforcement displays a shocking lack of all sense of proportion. Whether there is a reasonable necessity for search without waiting to obtain a warrant certainly depends somewhat upon the gravity of the offence thought to be in progress as well as the hazards of the method of attempting to reach

5 it. ln this case the potice had been over two months watching the defendant MacDonatd. His criminat operation, white a shabby swindte that the potice are quite right in suppressing, was nol one which endangered Iife or limb or the peace and good order of the community even if it continued another day or two; neither was the racket one the defendant was tikety to abandon. Conduct of the numbers racket is not a solitary vice. practised in secrecy and discoverabte onty by crushing into dwetling houses. 10

The court considered that it may be necessary in some instances of arrest and search to be conducted without a warrant. What are such grave circumstances? The decision was made on 13 December 1948 and may not be directty retevant to admissibitity of electronic data because as far as Uganda is concerned, there is a specific statute that deals with the matter. Nonetheless, in general exceptions in the pubtic interest may be considered. I have accordingty considered several other authorities on the question of search of premises without a warrant in more modern times when assessing admissibitity of electronic data. 15 20

ln Kevin Fearon Vs Her Majesty the Oueen [2014] 3 S. C. R.62I two men armed with handguns robbed a merchant and were arrested by the potice. The potice found a cett phone in one of the pockets of the alteged robbers. The potice searched the phone at the time and again within less

- than two hours of arrest. They found a draft text message which read inter atia: "we did it where the iewellery at nigga-.;'and some photos inctuding of a hand gun. About 36 hours later, the police had a search warrant to search the vehicte and recovered the handguns used in the robbery which was depicted in the photo.0nce later, police applied for 25 - and were granted a warrant to search the contents of the phone but no new evidence was discovered. The [earned triat judge found that the search of the cett phone incidental to the rest had not breached section 8 of the Charter which guaranteed the right to privacy. She admitted the photos and text message and convicted the appellant of robbery. The 30 - Court of Appeat dismissed an appeaI by the appettant and on further appeat to the Supreme Court, the issue considered was whether the police have a common law power to search incidental to [awfuI arrest. Secondty, whether this power permits the search of ce[[ phones and simitar devices found on the suspect. The Supreme Court held that to 35

resolve the issue, a balance must be stricken between the demands of 40

5 effective law enforcement and everyone's right to be free of unreasonable searches and seizures. The court must identify the point at which the "pubtic interest" would give way to the government's interest in intruding on an individuat's privacy to advance its goals of law enforcement. They found that to achieve the balance, can be done with a rule of taw which permits search of cell phones incident to arrest, provided the search of both what is searched and how it is searched is strictty incidentat to the arrest and the potice keep detaited notes of what has been searched and why. the Judgment of McLachtin C. J and Cromwetl, Moldaver and Wagner JJ were read by Cromwetl J who hetd inter alia that: 10 15

> [51) it is wett settled that the search of celt phones, [ike the search ol computers, impticates important privacy interest which are different in both nature and exlent from the search of other "ptaces".. lt is unreatistic to equate a cett phone with a briefcase or document found in someone's possession at the time of arrest.... And lwould add cetl phones - may have immense storage capacity, may generate information about intimate detaits o, lhe user's interests, habits and identity without the knowtedge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningfuI sense "at" the locat ion of the sea rch.

... [55] in this respect, a cell phone search is completety differenl from the seizure of boarding samptes in lhe Steel men and the strip search in Golden. Such searches are invariabty and inherently very great invasions of privacy and, in addition, a significant affront to human dignity. That cannot be said of cett phone searches incidentatto arrest.

[56] Second, we shoutd bear in mind that a person who has been tawfulty arrested has a tower reasonable expectation of privacy than persons not under [awful arrest: ...

[57] Third, the common law requirement that the search be reatty incidentat to a tawfut arrest imposes some meaningfut timits on the scope of a cet[ phone search. The search must be tinked to a valid law enforcement obiective retating to the offence for which the suspect has been arrested. This requirement prevents routine browsing through a cett phone in an unfocused way. 35

[58] Alt of that said, the search of a cell phone has the potentiat to be a much more significant invasion of privacy than the typical search incident to arrest. As a resutt, my view is that the generat common law framework for searches 40

5 incident to arrest needs to be modified in the case of cett phone searches incident to arrest. ln particular, the law needs to provide the suspect with further protection against the risk of whotesate invasion of privacy which may occur if the search of a celt phone is constrained onty by the requirements lhat the arrest be tawfut and that the search should be truty incidental to arrest and reasonabty conducted. The case taw suggests that there are three main approaches to making this sort of modification: a categoricat prohibition, the introduction of a reasonable and probabte grounds requirement, or a [imitation of search to exigent circumsta nces...." 10

The court rejected the idea that section 8 of the Canadian Charter categoricatty prectuded any search of a ce[[ phone seized incidentalto a lawfut arrest and found that the question was what safeguards shou[d be added to the taw of search of cell phones incidental to arrest in order to make the power comptiant with the right to privacy under section 8 of the Canadian cha rter. 15

- Secondty on the ground of imposing a reasonabte and probabte grounds requirement the court found that investigations may [ead to possib[e leads or dead ends and restrict ce[[ phone search restrictions which the authors of reasonabte and probabte cause believe the evidence of the offence to be found in ce[[ phone record for prompt access to what may 20 - be very important information which is required for the immediate purpose of the unfolding investigation. For instance, a prompt search of a cell phone may lead investigators to other perpetrators. They found that the standard of reasonabte and probabte grounds woutd or has the potentiat to unreasonable compromise the safety of the police, the accused or the public. lt strikes an inappropriate batance between those important law-enforcement ob,iectives of the accused privacy interests. 25 30

0n the third ground of exigent circumstances, it may a[[ow ce[1 phone searches onty in exigent circumstances. The approach gives almost no weight to law-enforcement objectives served by the abitity to promptty search a cett phone incidental to the arrest. By imposing a requiremenl of urgency, this basis failed to strike a ba[ance between privacy interests of the individual and the interests of the state in protecting the pubtic. They found that the above rationates do not change anything in retation to search without a warrant in exigent circumstances.

The court found that the appropriate approach is to concentrate on $\mathsf{S}$ measures to limit the potential invasion of privacy that may, but does not inevitably result from a cell phone search.

In other words, even if a computer is seized during the arrest, it can still be searched upon obtaining a warrant for that purpose. Search of a computer immediately after arrest or seizure may not be necessary. The court noted that:

[76] First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that the cell phone search in general terms is truly incidental to the arrest. Both the nature and extent of the search performed with the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purpose for which prompt examination of the device is permitted. But these rules are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphrase Caslake the police must be able to explain, within the permitted purposes, what they searched and why.

In Thomas Reeves Vs Her Majesty the Queen [2018] 3 R. C. S 531 the police discovered child pornography on the home computer that the accused/appellant shared with his spouse and the police officer did not have a warrant. The question was whether the police obtained the child pornography evidence in a manner that infringed privacy rights under 30 section 8 of the Canadian Charter of Rights and Freedoms. The trial judge excluded the evidence on the ground that it infringed the appellant's rights. The appellant was acquitted and on appeal, the decision was overturned and the evidence admitted and a retrial ordered. On further appeal the issue arising was whether the police infringed the appellant's 35 charter rights by entering the home without a warrant and secondly by taking the shared computer without a warrant.

Section 8 of the Canadian Charter provides inter alia that "everyone has the right to be secured against unreasonable search or seizure." The court found that the essence of searches under section 8 of the Charter

- 5 was the taking of an item from a person by a pubtic authority without that person's consent. ln contrast, a valid consent is a waiver of the claimant's rights. Where there was no consent, the duty of the court is to determine whether the search procedure was reasonable. lt is presumed that a search procedure is unreasonabte and the burden is on the state to rebut - this presumption. The question raised in the matter was whether police infringed the appettant's Charter rights by entering the shared home without a warrant and taking the shared computer without a warrant. The Judgment of Wagner C. J. and Abelta, Karakalsanis, Gascon, Brown, Rowe and Martin JJ were read by Karakatsanis J who found inter alia that the potice detained the computer without a warrant for more than four 10 15 - months but did not search it during that time. They faited to report the seizure of the computer to a justice as required by the taw. The police finatty obtained a warrant to search the computer and executed it two days tater. The tearned triat judge in the application concluded that the potice had viotated section 8 Charter rights because of the search without a warrant for the home and seizure of the home computer. This was overturned on appeat. She hetd that: 20

[30] Here, the subject matter of the seizure was the computer, and uttimately the data it contained about Reeves usage, including the fites he accessed, saved and deteted. lacknowledge that the potice woutd not actualty search the data untit they obtained a warrant... Neverthetess, white the privacy interests engaged by a seizure may be different from those engaged by a search, Reeves informational privacy interests in the computer data were stitt impticated by the seizure of lhe computer. When potice seized a computer, they not only deprive individuats of control over intimate data in which they have a reasonable expectation of privacy, they atso ensure that such data remains preserved and thus subject to potential future state inspection.

... [34] PersonaI computers contain highty private information. lndeed, computers often contain our most intimate correspondence. They contain the detaits of our financiat, medicat, and personaI situations. They even reveat our specific interests, tikes, and pro pensities.... Computers act as portats providing access to information stored in many different [ocations... They "contain information that is automaticatty generated, often unbeknownst to the users"... They retain information that the user may think has been deteted.. By seizing the computer, the potice deprived Reeves of control over this highty private information, inctuding the opPortunity to detete it They atso obtained the means through which to access this information. Indeed, these are the reasons why the police seized the computer.

[35] Given the unique privacy concerns associated with computers, this court has held that specific, prior judicial authorisation is required to such a computer.... And that police officers cannot search cell phones incident to arrest unless certain conditions are met.... The unique and heightened privacy interest in personal computer data clearly warrant strong protection, such that specific, prior judicial authorisation is presumptively required to seize a personal computer from their home. This presumptive rule fosters respect for the underlying purpose of section 8 of the charter by encouraging the police to seek lawful authority, who accurately accord with the expectations of privacy Canadians attached to the use of personal computers and encourages more predictable policing.

The court found that no statutory or common law authority could have justified the computer search in the case because if it had been done with a warrant and they had a warrant to search the home, it would have 20 justified this but not the search of the computer. Further in the course of the search by warrant, police can come across a group computer that may contain material for which they are authorised to seize but the warrant does not give them specific prior authorisation to search computers. They may seize the device but must obtain further 25 authorisation before it is searched. She found no basis why they detained the computer for four months without respecting the reporting requirements under the law. The police must report a search without a warrant to a justice as soon as practicable.

In the circumstances of section 28 of the Computer Misuse Act, 2011, it is 30 specifically provided that the computer system seized or copies of application or data taken by the authorised officer shall be returned within 72 hours unless the authorised officer has applied for and obtained an order in an interparty application for extension of time (see section 28

(8)). It is a further requirement that the magistrate has to be satisfied by 35 information given by a police officer that there are reasonable grounds for believing that an offence under the Computer Misuse Act has been or is about to be committed in any premises. Secondly that evidence that such an offence has been or is about to be committed is in those premises. Clearly the law requires a warrant for searching premises. The 40

$\mathsf{S}$

- 5 word "premises" inc[udes a vehicle as indicated above. Further the authorised officer is ctearty defined as a potice officer who has obtained the necessary warrant. Search of the premises is not necessarily the search of computers or etectronic devices such as ce[[ phones. ln other words, the officer may not know that such a device is in the premises. - That is where section 28 (21 of the Computer Misuse Act, becomes relevant because it provides that an authorised officer may seize any computer system or take any samples or copies of apptication or data and grounds for doing this is provided for in the law. 10

As far as the ground is concerned, it is provided that the seizure is based on reasonable grounds where the devise is betieved to be concerned in the commission or suspected commission of an offence, whether within Uganda or elsewhere. Secondty, that the computer system or samptes or cop ies of a pptications or data that may aff ord evidence of the commission or suspected commission of an offence, whether within Uganda or 15

- elsewhere is present. That it is intended to use the seized data or system which is intended to be used for, on reasonabte grounds believed to be intended to be used, in the commission of an offence. The section is further entrenched by section 28 (3) where it is ctearty provided that the computer system referred to which may be seized by an authorised 20 - officer may be seized with samp[es of copies of application or data and may be taken only by virtue of a search warrant. Ctearly an additionaI warrant to search the computer which has been seized pursuant to a search warrant is required. This in a nutshell, codifies the common [aw principtes of interpretation of charter rights in Canada which are atso enshrined in article 27 of the Constitution of the Repubtic of Uganda. 25 30

Going by the specific paragraphs and c[auses of article 27 of the Constitution, article 27 (l) provides that no person shat[ be subjected to (a) untawful search of the person, home or other property of that person. There are three prohibitions here. The first is the unlawfuI search of the

person. The second is the unlawfuI search of the home and the third is the untawfut search of other property. Like the Canadian Charter, the [aw goes on to provide specificatty that no person shatl be subjected to unlawful entry by others of the premises of that person. Thirdty, it is provided that no person sha[[ be subjected to interference with the 35

privacy of that person's home, correspondence, communication or other $\mathsf{S}$ property. By providing for privacy of correspondence, communication or other property, it is clearly the case that even if somebody has a warrant to search a home, it is another matter specifically to interfere with the communication or correspondence or other property of the person. Section 28 of the Computer Misuse Act, captures all the elements of 10 article 27 of the Constitution in that it provides for no search of the home person or other property without a warrant. It provides that there shall be no unlawful entry by others of the premises of that person. Thirdly, no person shall be subjected to interference with the privacy of that person's home, correspondence, communication or other property. In 15 other words, a judicial officer is required to authorise such interference with the privacy of personal, home or other property, in the circumstances of this appeal, under the Computer Misuse Act.

The judicial precedents we have reviewed immediately above deal with the common law right of search and found that it is modified by article 8 20 of the Canadian Charter which is similar to article 27 of the Constitution in that it protects the same right of privacy in similar words. The question is what is the unlawful search of a person, home or other property? The learned trial judge as indicated above relied on article 43 of the Constitution which allows derogation or limitation on fundamental and 25 other human rights and freedoms. Article 43 clearly provides in clause 1 that in the enjoyment of the rights and freedoms prescribed in the Bill of Rights, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest. What is the "public interest" is not provided for except by exclusion of what it is not. Public 30 interest does not permit political persecution, detention without trial and any limitation of the enjoyment of the rights and freedoms prescribed in the Constitution beyond what is acceptable and demonstrably justifiable in a free and Democratic society or what is provided for in this Constitution. 35

As far as what is provided for in the Constitution is concerned, article 43 clearly provides that what is prohibited is what is unlawful. It implicitly allows lawful search of the person, home or other property. We have carefully considered article 27 (2) provided separately from article 27 (1)

- 5 in that in articte 27 (2) is provided that "no person sha[[ be subjected to interference with privacy of that person's home, correspondence, communication or other property.0n the other hand, in article 27 (1) it is provided that no person shatt be subjected to unlawfuI search of the person, home or other property of that person or unlawful entry by - others in the premises of that person. The question as to whether interference with the privacy of the person's home, correspondence communication or other properties provided separatety the subject matter is better left for further interpretation by the constitutionaI court and cannot be and does not need to be decided in this matter. 10 - For purposes of this appeat, because Partiament is authorised under article 79 of the Constitution to make laws on any matter of the peace, order, development and good governance of Uganda. We have examined section 28 of the Computer Misuse Act which a[[ows seizure of computers and search of premises. ln the conlext of article 27 of the 15 - Constitution, for any search of any premises or computer to be lawfut, it has to be authorised by the [aw. The triat judge was concerned about the chitting effect section 28 of the Computer Misuse Act may have on the powers of [aw enforcement agencies to pursue investigations as and when the need arises inctuding the power to search a computer or cetl 20 - phone for data which may be relevant to the investigation of a criminaI offence. 25

lndeed, that is what is envisaged under section 28 of the Computer Misuse Act. The standard is the requirement of a reasonabte betief of a judiciat officer that an offence under the Computer Misuse Act has been

- or is about to be committed in any premises or that evidence that such offence has been or is about to be committed is in those premises. The magistrates upon being satisfied with the matters set oul in the law would issue the warrant for the search of the reported premises. Where a police officer has been authorised to enter and search the premises 30 - using reasonabte force which may be necessary, that authorised officer may cease any computer system or take any samptes of copies of apptication or data. Thereafter, that police officer may obtain a warrant to search the computer or the cetl phone found in the searched "premises'. The reason why the second warrant is necessary is because 35

- 5 the first search warrant is for discovery that is why section 28 (2) of the Computer Misuse Act envisages the seizing of any computer system or samptes of copies of apptication or data found on the premises which are searched and a search warrant for the same reason that there are reasonable grounds to believe that it was concerned in the commission - or suspected commission of an offence within or without Uganda. 0r that the computer or electronic device may be evidence of the commission or suspected commission of an offence within or without Uganda. 0r that the computer is intended to be used on reasonable grounds believed that it is intended to be used in the commission of an offence' ln other words, 10 - lhe arrest and seizure of the appellants'etectronic devises may have been on exigent grounds but this did not per se prove that the search of their devises was exigent. When the computers were in custody, a search warrant ought to have been obtained immediately to open them and spi[[ open their contents. 15 - We have carefutly considered the evidence and particularly the testimonies of PWl, PW2 and PW 10 and PW 20 regarding the electronic evidence in the way of computers drives as wetl as ftash disks. PWl testified that certain information was found in the hard drive of the first appettant (in his taptop). 20 - A ticense file was found in the taptop of the first appettant' He also found hacking tools. Evidence was retrieved from that taptop. There was an external hard disk which was atso recovered. lt had usernames and passwords. lt had Uganda Revenue Authority hashes. lt had hacking too[s matasbite and fraudutent accounts. PW1 gave a detailed testimony about the data which was recovered. ln cross examination PWl testified that he 25 30 - got information around March 2011 about an ongoing scheme, which was considered in the prosecution case.

PW2 Mwebesa Bruno, Customs enforcement officer testified that on'19 )une 2012, he got instructions from enforcement operations DanieI Arora to impound a vehicte registration number UAG 342R and arrest its occupants. They were suspected to be hacking into the URA computer system. He went with five enforcement officers and found three occupants holding three laptops. The fourth was watching and besetting. These peopte inctuded the first appettant who had a [aptop, Farouk (A2)

- 5 and Kibatama Richard also had [aptops. The occupants of the car were arrested and their taptops removed and handed over to him (PW2). Thereafter he presented the vehicte, suspects and [aptops to the enforcement office of URA. Among the things impound were an external hard drive, inverter, ftash disk, five mobile phones, and iPhone and other - documents. The laptops were Lenovo laptop, Samsung [aptop and HP taptop. At the time of the arrest, he had a search certificate dated l9th of June 2012 the search certificate was admitted in evidence as exhibit P4. 10

ln cross examination, he testified that none of the peopte who went to arrest the appellant's and other suspects were police officers. There were five army officers who participated in the arrest. Before moving on, the respondent retied on section 7 of the East African Customs Management Act for the provision that customs officers are police officers who can carry out searches and seizures. We reject this notion from the outset. Section 7 of the EACCMA reads as follows: 15

7. For the purpose of carrying out the provisions of this Act, every officer shalt, in the performance of his or her duty, have alt the powers, rights, priviteges, and protection, of a police officer of the Partner State in which such officer performs his or her duty.

Clearly every officer has powers of a potice officer in carrying out duties under the East African Customs Management Act 2004 and not under the Computer Misuse Act. Further an "officer' under section 2 of the East African Customs Management Act is defined to mean: 25

> "officer" inctudes any person, other than a laborer, emptoyed in the service of the Customs, or for the time being performing duties in retation to the Cusloms:

Ctearly the customs officers or enforcement officers carry out duties under the East African Customs Management Act and not the Computer Misuse Act. ln addition, we accept the submissions of the appettants that under section 158 and 159 of the EACCMA, searches are stit[ conducted after a search warrant is obtained from a Magistrate. Sections 158 and 159 fottow each other provide that:

158.---(1) Without prejudice to any other power under this Act, where any officer dectares on oath before any magistrate that he or she has reasonabte grounds to betieve that there are in any premises any uncustomed goods or

- documents relating to any uncustomed goods, then such magistrate may by warranl under his or her hand authorize such officer to enter upon and search, with such force as may be necessary and by day or by night, such premises and lo seize and carry away any uncustomed goods or documents retating to any uncustomed goods found therein. - (2) An officer in possession of a search warrant may require any police officer to assist him or her in the execution of such warrant and any police officer so required shalt render assistance accordingly. 10

Power to require production of books, etc.

159.---(l) Where-

(a) information has been given to the proper officer that any goods have been, or are intended to be, smuggted, or undervatued, or deatt with in any way contrary to this Act; or

(b) any thing or goods have been seized under this Act, the proper officer may require the owner of the goods or thing to immediatety produce atl books and documents, whether in written form or on micro-fitm, magnetic tape or any other form of mechanicat or etectronic data retrievaI mechanism retating in any way thereto, or to any other goods imported, exported, carried coastwise, manufactured, purchased, sotd or offered for sate by that owner wilhin a period of five years immediatety preceding the requirement.

(2) On the production of such books or documenls the proper officer may inspect and take copies of any entries in the books or documents; and the proper officer may seize and detain any such book or document if, in his or her opinion, it may afford evidence of the commission of an offence under this Act' 25

The above two sections demonstrate that powers of officers under the East African Community Customs Management Act appty in the clear context of apptication of East African Community Law. Where a person is charged under a national, taw, the laws of Uganda such as the Computer Misuse Act is appticable and enforceable on its own terms. lt is a national law as opposed to a community [aw relied on by the respondent. Community Laws take precedence over national laws in case of conflict under section 253 of the EACCMA, 2004. ln any case, the precedence retates to community laws and not national [aws' Section 253 provides that: 30 35

This Act shatt take precedence over Partner States'taws with respect lo any matter to which its provisions retate.

5 ln this appeat the appellants were charged under the Computer Misuse Act and the charge under the East African Community Act did not succeed and was not appeated. The matter is therefore solety governed by nationa t [aws.

ln the premises, there is clearly no evidence that a search warrant was obtained from a magistrate. The items were recovered from a vehicle which fits the definition of "premises" under section 28 (8) of the Computer Misuse Act. Further the [earned triat judge in a ruling pursuant to the submissions of the defence that section 28 of the Computer Misuse Act was not comptied with and that without a search warrant no one can 10

- seize the articte specified therein ruted on the matter' He found that given the circumstances pursuant to the evaluation of evidence of PW2, PW6 and PW 26, the prevaiting circumstances where such that instant response to act in the circumstances had presented itsetf' They did not act unreasonabty in the circumstances and the seizure on occasion of 15 - the arrest of the appeltants was [awfu[. They seized items were eventua[ty handed over by PW2 and the manager of forensic investigations of URA tendered it in evidence. 20

We agree with the tearned triat judge that the seizure of the items upon suspicion coutd have been lawfut. However, the items were supposed to

- be returned within 72 hours under section 28 (8) the Computer Misuse Act 2011. They were not. Secondty, upon seizing the computers, ftash disks, externat hard disk et cetera, that was not a right without authorisation to search the items for information' The state had sufficient time to obtain a search warrant f rom a magistrate. The items were seized 25 - on lg June 2012 but the evidence of PWI indicated that investigations began around March 2011. Even if the computer was found in the commission of an offence, there was no evidence adduced by the peopte who seized the computer of any activity that was going on at the time the computer was seized other than specutative evidence. The computers 30 - were not examined there and then as items found in possession of the arrested persons under section 6 of the Criminal Procedure Code Act so as to provide further ctues in investigations. ln the premises, the search of the computers white in the custody of the state and without the sanction of court violated articte 27 of the Constitution of the Republic of 35

Uganda because it was unlawful. Secondly, it violated the section 28 of $\mathsf{S}$ the Computer Misuse Act in that there was no police officer involved in the seizures or the search of the computers. It was not carried out by an authorised officer.

The fact that the computer could have contained incriminating evidence does not justify search without a warrant. It was not exigent or urgent 10 once the items were in the custody of the state. The state even had the time to send one computer to south Africa for forensic analysis but did not seek leave of a magistrate. The conclusion that the search of the computers was exigent in the circumstances was an erroneous conclusion of the learned trial judge. We find that the search of the 15 computers and hard discs which were in custody was an unlawful search forbidden by article 27 of the Constitution of the Republic of Uganda. The search of the computers could not be justifiable in a free and Democratic society because it was not done in accordance with the law which allowed search and instances when it would be made. The arrest of the 20 appellants was lawful but clearly there was non-compliance with section 28 of the Computer Misuse Act, the very law under which the appellants were charged. It is section 28 of the Computer Misuse Act which authorises a magistrate upon being satisfied that an offence was being or is about to be committed only to issue a warrant authorising a police 25

- officer to enter and search premises which include a motor vehicle. Secondly, the authorised officer may seize any computer system found in such a vehicle or premises. In other words, the very law which authorises the seizure of the computers specified how it is to be done. If - the appellants were about to escape, it was sufficient to arrest them and 30 impound the computers and obtain a search warrant so that the contents of the computers can be established. The investigation had taken a long period of time. We would find that the evidence extracted from the computers ought to have been excluded for violation of section 28 of the - Computer Misuse Act as well as article 27 of the Constitution of the 35 Republic of Uganda. We do not agree with the trial judge that compliance with section 28 of the Computer Misuse Act, would make it difficult for the police to enforce the law or to investigate crime. This is because even if the appellants were arrested in the heat of the moment when - 5 committing the offence, there was stiI sufficient time within 48 hours when they were arrested to obtain the warrant of search so that the computers can be investigated. Further, if any warrant of search is not sufficient to keep the computer for several months. lt was necessary in any interparty application, to appty to the court to extend the period of 72 - hours within which to carry out forensic analysis. Breach of the law rendered the evidence obtained in viotation of it an ittegatity and therefore the search of the computers was unlawfuI and forbidden by article 27 of the Constitution of the Republic of Uganda. 10

ln the premises, we would allow ground I of the appeat.

Ground 2 of the appeal is that the learned triat judge erred in [aw and fact when he convicted the appellants without the prosecution disctosing the Encase software forensic tool used and mirror images analysed to the defence, as required by the taw thus occasioning a miscarriage of justice. 15

Ground 2 of the appeal ought to have been argued in the atternative because it deats with information obtained from the laptops from which forensic evidence was admitted. ln the absence of such evidence on the ground that it is excluded for noncomptiance with articte 27 of the Constitution and section 28 of the Computer Misuse Act, there is no need to consider or view forensic images of two [aptops and one externaI hard disk which cannot be admitted in evidence. 20 25

Grounds three & f ive.

Having a[lowed ground 1 of the appea[, the issue of evatuation of evidence and inconsistencies and contradictions does not add any weight to the prosecution evidence or the appettants defence as the foundation of the

evidence is the forensic evidence erroneousty admitted. We find it unnecessary to evaluate the evidence whose foundation has been exc lu de d. 30

Grou nd 4

The tearned triat judge erred in law when he commenced the triat and convicted the appettants without the assessors taking oath and contrary to the provisions of the law, thereby occasioning a miscarriage of justice. 35

5 The effect of faiture to take oath has been the subject of numerous dec is io n s.

As a matter of fact, the appettant submitted that the assessors were not sworn and therefore the triat was a nu[tity. He retied on Alenyo Marks v Uganda; Supreme Court Civit Appeat No. 08 of 2007 tor the proposition that a triat that proceeds without swearing in of assessors is a nu[[ity' (See atso Abdu Komakech v Uganda; Supreme Court Civil Appeat No. 1 of 1994).0n the other hand, the respondent submitted that no prejudice had been occasioned to the appettant because the assessors participated throughout the triat and there was a summing up to them before they

gave their opinion. 15

We have carefutty considered the controversy as to whether the assessors were sworn in before taking the seat as assessors in the triaI of the appettants. We have carefutty considered the record and find that the matter initiatty proceeded before the principat magistrate grade 1.

Mrs Mary Kamuti Kuteesa on behatf of the state apptied for the case to be tried by the High Court because of the seriousness of the case. The accused were committed to the High Court under section 168 of the Magistrates Courts Act. 20

We have carefulty considered the Computer Misuse Act and section 31 thereof which deats with the jurisdiction of the courts provides that: 25

3l. J urisd ict ion of courts.

A court presided over by a chief magistrate or magistrate grade I has .iurisdiction lo hear and determine att offences in this Act and, notwithstanding anything to the contrary in any written law, has power to impose the futl penalty or punishment in respect of any offence under this Act'

We find it quite strange that a magistrate grade l does not try such an offence with assessors. When it is sent to the High Court for trial, there is a requirement for assessors the procedure for swearing in and conduct of the trial with assessors.

It cannot be the case that a magistrates' court which tries without assessors cannot be objected to on the ground that the matter was tried without assessors and when it is remitted to the High Court for tria[, it becomes an issue that the triat proceeds without assessors having been 35

sworn in. What was the seriousness of the case that required the matter $\mathsf{S}$ to be tried by the High Court? Section 166 of the Magistrates Courts Act provides that:

Where a charge has been brought against a person in a court having no jurisdiction to try the offence with which he or she is charged, the magistrate shall remand the accused person in custody to appear before the court having jurisdiction to try that offence.

Section 167, a magistrates' court on the application of the DPP may transfer a case which ought to be tried by a Superior Court for trial by the Supreme Court.

- Section 168 deals with committal for trial by the High Court clearly 15 provides that it applies to cases to be tried by the High Court. What is a case to be tried by the High Court? We think that offences that are triable by other courts are not triable by the particular magistrates' court in terms of its jurisdiction. For the moment we are not concerned with - territorial jurisdiction of Magistrates and limit the judgment to 20 jurisdiction of Magistrates Courts to try the kind of offence. The jurisdiction in criminal matters is provided for under section 161 of the Magistrates Courts Act which is clear and provides that:

161. Criminal jurisdiction of magistrates.

(1) Subject to this section, a magistrate's court presided over by— 25

> (a) a chief magistrate may try any offence other than an offence in respect of which the maximum penalty is death;

> (b) a magistrate grade I may try any offence other than an offence in respect of which the maximum penalty is death or imprisonment for life;

(c) a magistrate grade II may try any offence under, and shall have jurisdiction 30 to administer and enforce any of the provisions of, any written law other than the offences and provisions specified in the First Schedule to this Act;

> (d) a magistrate grade III may try any offence under, and shall have jurisdiction to administer and enforce any of the provisions of, any written law other than the offences and provisions specified in the First and Second Schedules to this Act.

5 (2) ln this section, references to an offence shatl be taken as inctudtng references to attempts to commit, aiding and abetting or inciting the commission of that offence.

> (3) Nothing in this section shatt derogate from the provisions of any written law which provide that any offence shatt be triabte, or any provision shalt be adminlstered or enforced, onty by a particutar grade of magistrate or by a particutar court.

> (4) For the removal of doubt, it is dectared that no magistrate's court shat[ have iurisdiction to take cognisance of any offence of robbery as defined in section 285 of the Penat Code Act and punishabte under section 286(2) of that Act.

It is clear that the offence charged is not a capitaI offence and a magistrate coutd try the offence. The apptication of the DPP is envisaged under section l6? of the MCA and provides for the DPP to appty at any stage of the proceedings upon finding that it is the case that ought to be tried by a court superior to that of the Magistrate's Court. This is not one of those cases that ought to be tried by the High Court. The above notwithstanding section 169 of the MCA allows the DPP to make an apptication for a transfer of a matter to the High court and the apptication is not to be refused on the ground that the magistrates court has jurisdiction to try the offence. Section 169 of the MCA provides as fotlows:

> 169. Director of Pubtic Prosecutions lo determine offences to be committed to High Court.

Subject to section 168, for the avoidance of doubt it shalt be within the discretion of the Director of Pubtic Proseculions which offences are to be proceeded with under section 168 for triat before the High court or to be tried by a magistrate's court; and triat by the High Court of an offence committed to that court under section 158 shatt not be refused merety on lhe ground that a magistrate's court has jurisdiction to try the offence.

It is our finding that this was a case that was triabte by the magistrates' court and the procedure for triat did not require the participation of assessors. Secondty, we have considered the jurisdiction of the High Court. The High Court is an appettate court for purposes of appeats from the decision of a Magistrate Grade 1 or a Chief Magistrate. The above notwithsta nding, the High Court has jurisdiction under seclion 1 of the Triat on lndictments Act try any offence under any written law and 35 40

5 purpose in his sentence authorised by the [aw. The High Court wou[d not try any offence under any [aw untess the accused person has first been committed for trial to the High Court in accordance with the Magistrates Courts Act.

Having carefutty considered the [aw, we are of the firm view that the appettants suffered no preiudice when they were tried with assessors and the onty attegation is that the assessors were not sworn in. There is no ctear record as to what actuatly happened at the preliminary stage when the matter was remitted to the High Court. ln our view it is a question of scanty records since the learned triatjudge complied with att 10

- the procedures of triat with the participation of assessors under the TriaI on lndictments Act. Section 3 of the TIA provides that except as provided by any other written [aw, at] trials before the High Court shatl be with the aid of assessors, the number of assessors sha[[ be two or more as the court thinks fit. ln the circumstances of this appeat, it would be absurd to 15 - find that a magistrates' court which had jurisdiction in the matter coutd try without assessors and it would be an invatid triat if the High Court tries the same matter with assessors due to irregutarity of not having sworn in for purposes of triaI by the High Court. lt woutd atso be absurd, to grant bail to such accused persons triabte by a magistrates' court on 20 - lhe same footing as persons charged with a capita[ offence which is exclusively triabte by the High Court. 25

ln tight of our decision on the ground of triaI on the basis of evidence that ought to have been exctuded, we find no need to rule on ground 4 of the appea[.

Ground 6 of the appeat that the learned trialjudge erred in law and fact when he convicted and sentenced the appettants in violation of the Constitution prohibition against doubte jeopardy. 30

Having atlowed ground I of the appeat, we find no need to try the rest of the grounds against sentence.

We find that faiture by the [earned trial judge to exc[ude evidence extracted from computers which evidence was accessed without an order of search of the computers by a magistrate violated articte 27 of the Constitution rendering the trial a nutlity. The material evidence used 35

to convict the appellants was the primary and unlawfully procured $\mathsf{S}$ evidence relied on by the prosecution.

The appellants had been charged in 2012 and were sentenced in 2013. The matter then went on appeal and the Court of Appeal ordered a retrial. The matter was further appealed to the Supreme Court which restored the order of the High Court. Thereafter this appeal was argued in June 2022. It is now October 2022, a period of about 10 years. The appellants had been sentenced to a maximum of 12 years' imprisonment and eight years' imprisonment to run concurrently.

We find that ordering a retrial in the circumstances is impracticable and would be prejudicial to the appellants. We accordingly allow the 15 appellants appeal against conviction and sentence and acquit the appellants. We order that the appellants be set free unless held on other lawful charges.

Dated at Kampala the 14th day of Octeber 2022

**Catherine Bamugemereire**

**Justice of Appeal**

**Christopher Madrama**

Justice of Appeal

Eva K. Luswata

**Justice of Appeal**