Uganda v Babirye (Criminal Appeal 6 of 2024) [2024] UGHC 824 (9 September 2024)

## THE REPUBLIC OF UGANDA

## IN HE HIGH COURT OF UGANDA HOLDEN AT MBALE

# CRIMINAL APPEAL NO. 006 OF 2024

(ARISING FROM CRIMINAL CASE NO. 116 OF 2016, CRB NO. 1747 OF $2019)$

UGANDA :::::::::::::::::::::::::::::::::::

### **VERSUS**

BABIRYE JACKIE ::::::::::::::::::::::::::::::::::::

### BEFORE: HON. JUSTICE LUBEGA FAROUQ

### **JUDGMENT**

### 1. Introduction:

2. This appeal arises from the decision of Her Worship Nakkazi Mary Gorreti Magistrate Grade One at Mbale. In the trial court the accused/Respondent was charged with two counts to wit- Cyber Harassment contrary to section 24 (1) and 2(a) & (c) of the Computer Misuse Act, 2011 and Insulting the modesty of a woman contrary to section 128 (3) of the Penal Code Act Cap 120.

### 3. Background

- 4. COUNT I: - 5. On Count I, the facts of the case were that between June 2018 and November 2019, Babirye Jackie and others still at large at Bugwere Cell, Mbale District knowingly permitted a phone being an electronic device for purpose of intimidating Nandutu Oliver to wit- kill her and cut off her breasts. - 6. While resolving this count, the trial court considered the following ingredients- - (a) Making any request or proposal which is obscene, lewd, lascivious or indecent: $\mathbf{1}$

- (b) Knowingly permits any electronic communications device to be used for any of the purposes of making a request which is obscene; - (c) Participation of the accused. - 7. The first two ingredients were resolved in favour of the Appellant whereas the last ingredient was resolved against the Respondent. - 8. COUNT II: - 9. On Count II, the facts were that Babirye Jackie and others still at large with intent to abuse the modesty of a woman named Nandutu Oliver uttered words "You are dry in your vagina, Ambrose used to spit saliva in your vagina before fucking you" - The following ingredients were considered by the trial court for this $10.$ count-

(a) Insulting the modesty of any woman or girl by uttering words or gestures which intrudes on the privacy of such a woman;

- (b) That the accused participated in the commission of the offence. - 11. Court found that the first ingredient had been proved by the Appellant but it failed to prove the $2^{nd}$ ingredient. - Following the Appellant's failure to prove the ingredient of 12. participation in both the counts, the Respondent was acquitted on both counts hence this Appeal.

#### 13. **Ground of Appeal**

- (a) That the learned trial magistrate erred in law and fact in failing to evaluate the evidence on record, thereby coming to a wrong conclusion in acquitting the accused/Respondent which occurred a miscarriage of justice. - (b) That the learned trial magistrate failed to evaluate electronic evidence on record. - (c) That the learned magistrate failed to properly evaluate the prosecution evidence and came to a wrong conclusion by holding that the prosecution did not prove their case beyond reasonable doubt.

$\mathcal{L}$

- (d) That the learned trial magistrate erred in law when she failed to admit audio recording that formed basis of this case. - Counsel for the Appellant however reduced the above grounds into 14. issues as below- - (a) Whether making any request or proposal which is obscene, lewd, lascivious or indecent by the Respondent amounted to cyber harassment against Nandutu Oliver? - (b) Whether the Respondent knowingly permitted any electronic communication device to be used for any of the purposes of making a request which is abscene against Nandutu Oliver? - (c) Whether the Respondent insulted the modesty of any woman or girl named Nandutu Oliver by uttering words or a gesture that intrudes on the privacy of such a woman

(d) Whether the Respondent participated in the commission of the offence.

He prayed that the judgment and acquittal be set aside. 15.

#### 16. **Legal Representation**

Counsel Peter Mugisha Senior State Attorney and Christine Kituyi 17. represented the Appellant whereas Counsel Nambuya Marion on state brief for Counsel Wanume Ivan represented the Respondent.

#### 18. **Submissions**

At the hearing of this matter on 11<sup>th</sup> of July, 2024, I gave schedules $19.$ to both counsel to file submissions and the rejoinder was supposed to have been filed on 30<sup>th</sup> of July, 2024. However, only the submissions of the Appellant are on the court record. I will proceed to write the judgment.

#### Duty of the first Appellate Court 20.

This being a first appeal, this court is under a duty to reappraise the 21. evidence, subject it to an exhaustive scrutiny and draw its own inferences of fact, to facilitate its coming to its own independent conclusion, as to whether or not, the decision of the trial court can be sustained. (See: Bogere Moses V. Uganda SCCA No.1 of 1997 and Kifamunte Henry V. Uganda, SCCA No.10 of 1997).

#### Evidence in the trial court $22.$

- To prove its case, the prosecution/Appellant called 3 witnesses to 23. PW1 OLIVE NANDUTU, PW2 MASUBA ALEX, and PW3 D/C wit-KOLOYENI OLIVE. - It also tendered in court exhibits to wit-24. - (a) call data from MTN Uganda dated 25/10/2019 admitted as PEXH.1, - (b) DVD as $PEXH.2$ , - (c) exhibit slip as $PEXH.3$ , - (d) Translation as PEXH.4. - 25. The accused/Respondent was the only witness for the defence.

PW1 in her testimony in chief said; 26.

> "I know the accused as my sister in law to my former husband." I have known her since 2013. In 2018 my husband went for a mission in Somalia. He bought a plot in Iganga with the help of his sister. When the accused called me she introduced herself as Babirye before she insulted me. Accused called and said Oliver this Babirye speaking, then she asked me to stop going to the plot, then the other sounded in the communication..... Later on the accused, Ajuna Ambrose another woman started making and Sylvia and calls abusing me. The four were conference communicating at the same time.... they used to tell me "I smell bad, how I defecate feaces in the toilet. How I move around sleeping with people to me children that I will not get. I am such a bad woman in front of the women.

> Babirye/accused said I took witch craft in the house they saw it that I should go to remove it. Your vagina is $dry$ that they first spit in it before entering in it. I should find alternative to become a num or look for an Aunt (senga).

> > $\overline{4}$

The accused is the one who said I defecate feaces in the toilet and call feaces as children. With my big breasts **and ting legs** if they get me on the plot they will show me..... In the month of November, 2019, the accused called me and said "Kisirani gwe" are you still alive?"

In cross- examination, PW1 said that-27.

> "The phone number which was used was registered in Ajuna" Ambrose's name. The accused never called me directly but connected to Ajuna Ambrose's number to talk to me."

In re-examination PW1 said-28.

> "The accused introduced herself to me before she talked. I switched off the phone but called on the same number and started abusing me."

29. PW2 said that-

> "I was approached by the I. O in the names of Oliver to *interpret the audio which was in Luganda. I first reduced it in writing into Luganda and then translated in English. She gave* me a flash and I carefully listened to the audio. I reduced the *same in writing in Luganda and later translated it in English.* In the audio, there were two people conversing, the person in the audio was Babirye, I did not know the other person's name. The people were speaking about somebody. That the *woman had a bad omen and she did well to leave their brother.* She only came to their brother's place to fill the latrine and $doesn't know to sleep with men among others.$

30.

PW3 the investigating officer said-

"On 29/09/2019 I was allocated a case file CRB 1747/2019. It was a case of cyber harassment and insulting the modesty of a woman. The suspect was Babirye Jackie and others. In the course of investigation I discovered that the complainant was married to the brother of the accused but

they separated. I also realised that the complainant was threatened on phone through conference calls by the in-laws who is the accused and others and the complainant had recordings. The threats were that the complainant smells bad and that she was not fit for their brother and that is why the brother chucked her.

The audio was saying "Gusirani quqwo" "Gusirani Twaquwona". The conference was mainly between the accused and sheilla who is still at large. The complainant knew the accused because they were in-laws. One of them was tracked in Iganga that is the accused and was arrested. The call data was basically to guide us where the accused were and not the conversation between the **accused persons**. The first number (0777573882) was for Ajuna Ambrose and the other number (0779951508) was receiving calls from Ajuna's number. The calls went through 22/10/2019 $26^{th}/09/2019$ , $27/08/2019$ , and $on$ $25^{th}/10/2019$

PW3 further said that; 31.

> "the complainant came with the audio and the flash and the audio was transferred from the phone to the CD. **According to** the investigations the voices in audio were for the suspects and the same were translated. The audio was coming from the accused to the phone of the **complainant.** I got the flash and the CD from the complainant and exhibited them.

> After exhibiting them they were supposed to be translated so they bought the translator PW2 who translated them and put the same on the file." ## In cross- examination PW3 said-32.

"the recordings were transferred from the complainant's flash and the DVD. The transfer was done from police: It was not done by the complainant. The Interpreter Alex transferred the recording from the phone to the DVD. Alex used a computer to transfer the information from the phone to the flash and DVD. I was present and the $\rm O\!C$ station was present. At that time we did not have a specialist at Mbale CPS to transfer such data and PW2 had an idea **since he was working in court**...... The number which was used was not registered in the names of the accused but in the name of Ajuna Ambrose. We used her voice in the conference calls to track her since the complainant knew **her**. Four numbers were calling the complainant in the *conference* as per the call data but I can't tell which one was *for the accused."*

33. DW1 in her testimony said that-

> "I knew the complainant, she was our sister in law but they had since separated with our brother called Ajuna Ambrose. I *have never abused the complainant because even the numbers* they allege I used to abuse are not mine and the voices in the *audio recording are also not mine."*

In cross-examination, DW1 said that-34.

> "Ajuna is my brother and was married to the complainant for 6 years. We did not have any grudge. My brother told me that when he went to serve in Somalia, he found when the accused had brought another man in the house and that is why they separated.... I do not know with whom my brother left his phone with when he went to Somalia.......what brought issues is when my brother Ajuna Ambrose went to Somalia and

$\overline{7}$

he left me with his card and I bought for him a plot and constructed the house for him.

## Analysis of court 35.

Count No. 1 and Count II 36.

The two counts are going to be considered together since they arise 37. from the same transaction.

- As already stated in the body of this judgment, the trial magistrate 38. answered the other ingredients in favour of the Appellant which means this court is now only under a duty to evaluate the evidence on the court record and establish whether the Respondent participated in the commission of the offences. - 39. From the grounds of appeal and issues framed by counsel for the Appellant, I note that he included questions regarding the ingredients which the trial magistrate already answered in favour of the Appellant. I will not consider them. I will consider the issue on participation which did not succeed in the trial court.

## 40. Issue No. 4: Whether the Respondent participated in the commission of the offences?

In the trial court, the Appellant relied on the audio recording which 41. was transferred from the complainant's phone to the DVD to prove the Respondent's participation. The trial magistrate however faulted the audio recording for not being authentic following the way the said data was transferred.

S.4 of the Electronic Transactions Act Cap 99 provides that-42.

> "Information shall not be denied legal effect, validity or enforcement solely on the ground that it is wholly or partly in the form of data message."

43. S.6 $(2)(a)$ provides that-

> "For the purposes of subsection $1(a)$ , the authenticity of a data message shall be assessed—

> > 8

(a)by considering whether the information has remained complete and unaltered, except for the addition of an endorsement and any change which arises in the normal *course of communication, storage or display;*

(b) In light of the purpose for which the information was *generated; and*

*(c) Having regard to all other relevant circumstances.*"

44.

Section 7 (4) of the Electronic Transactions Act provides that-

"When assessing the evidential weight of a data message or an electronic record, the court shall have regard to-

*(a)the reliability of the manner in which the data message was generated, stored or communicated;*

(b) The reliability of the manner in which the authenticity of *the data message was maintained;*

*manner* in *which* the originator of the data $(c)$ The message or electronic record was identified; and (*d*)*any other relevant factor*".

45.

S. 7(5) of the Electronic Transactions Act Cap 99 provides-

"The authenticity of the electronic records system in which an electronic record is recorded or stored shall, in the absence of evidence to the contrary, be presumed where-

*(a)there is evidence that supports a finding that at all material* times the computer system or other similar device was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic record and there are no other reasonable grounds to doubt the integrity of *the electronic records system;*

(b)it is established that the electronic record was recorded or stored by a party to the proceedings who is adverse in interest to the party seeking to introduce it; or

(c)it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not record or store it under the control of the party seeking to introduce the record."

Section 7 (6) of the Act provides-46.

> "For the purposes of determining whether an electronic record is admissible under this section, evidence may be presented in respect of set standards, procedure, usage or *practice on how electronic records are to be recorded or stored.* with regard to the type of business or endeavours that used, recorded or stored the electronic record and the nature and purpose of the electronic record." (underline for emphasis)

In the case of Kakonge V. Uganda Criminal Appeal No. 0099 of 47. 2018, Court noted that-

> "Where the information passes the authenticity test laid under section 7 (2) it may be relied on by the court. The said assessment is made against the said criteria; firstly whether the information has remained complete and an altered, except *for addition of an endorsement or any other change which may* arise in the normal course of communication in light of the purpose for which the information was generated. Secondly, the authenticity of the information is assessed having regard to all relevant circumstances."

Court further stated that-48.

> "In addition to the reliability test referred to above, the *electronic evidence tendered should be clear, unequivocal, and* self-explanation. By clear we mean that the evidence must be

substantially comprehensible. As regards the requirement that the evidence must be equivocal and self-explanatory. We are of the view that the contents of the said evidence must not be capable of reasonably having two conflicting interpretations."

- In the instant case, as quoted above, it is the evidence of PW1 that 49. she was insulted and abused on phone by the Respondent and others still at large. That while abusing her, the phone recorded their conversation. She did not however describe how the phone was able to record the said information because usually such recording is not automatic. She did not also describe to court how such recording was generated, stored, maintained and managed until she handed it over to the investigating officer (PW3). - Further, when the alleged phone was handed over to the 50. investigating officer, she also gave it to PW2 (the court clerk) who assisted to transfer the audio recording to a DVD. However, PW2 being a mere court clerk, did not describe the state under which he found the audio recording or in which programme he used to retrieve the audio recording from. - Following the standard set by the law, PW2 and PW1 ought to have 51. explained to court how the stated audio was recorded, stored, maintained and managed but they did not. Hence, the audio did not pass the test required by section 7 (4) of the Electronic Transactions Act. - Secondly, PW2 and PW1 did not indicate to court whether the audio 52. recording was complete and not altered as required by section $6$ (2) (a) of the Electronic Transactions Act. - 53. The trial magistrate stated that the audio recording was not audible which means she could not properly hear or identify what was being said. - Therefore, the Appellant witnesses having failed to prove the tests 54. set in sections $7(4)$ and $6(2)$ (a) above, I am unable to believe that the audio recording was authentic. - In the circumstance, I find that the trial magistrate properly 55. evaluated the evidence on the court record when she found that the

Appellant failed to prove the participation of the Respondent beyond reasonable doubt.

**INCLUSION**

It is trite that the standard of proof in all criminal cases is beyond 56. reasonable doubt and where doubt is created in the mind of court, such doubt must be resolved in favour of the accused/Respondent. (See: Sections 101 (2) and 103 of the Evidence Act Cap 8)

This Appeal is hereby dismissed. 57.

I so order.

**LUBEGA FAROUQ**

**JUDGE**

Judgment delivered via emails of the parties on 9<sup>th</sup> day of September, 2024.