It made a great splash in the media when Ugandan civil servant Stephen Kisembo was arrested and charged with spying for Sudan. But when the high court of Uganda acquitted Kisembo there was little interest. In my view, however, given the sensitive nature of the allegations, the trial set an extraordinary example of transparency – all the more so since it was held in a country not usually associated with concern for openness.
The story as it emerged from the judgment in Kisembo’s trial reads like a spy-thriller. And though the decision by Judge Stephen Mubiru has been redacted on the Uganda Legal Information Institute site, much of the edited information – including the crucial question of the country whose diplomats were allegedly receiving information from Kisembo – has been in the public domain and widely available on the Internet for some time.
Kisembo was a relatively lowly filing clerk at Uganda’s External Security Organisation (ESO) HQ in Nakasero, Kampala district. But one of his more sensitive duties was to deliver to State Lodge the weekly security briefings prepared by the director general of the ESO and intended for President Yoweri Museveni.
He had to take the briefing material across to the official offices in a special briefcase and at the handover a protocol involving a secret code allowed the briefcase to be opened so the contents could be removed.
Then came the day when Ugandan intelligence official realized that a document had been leaked and began surveillance of all ESO staff who might have had access to the document. Kisembo became their most likely suspect and on 25 September 2013 he was stopped as he left the ESO premises.
According to the prosecution, he was found to have a document under his shirt. Questioned about it, he allegedly said that since about 2009 he had been giving information like this to several consecutive Sudanese diplomats serving in Uganda.
After his arrest, Kisembo’s alleged admissions were recorded and he wrote a letter of apology to the President.
Then came the sting. The ESO, working with Uganda’s Joint Anti-Terrorist Task Force, took Kisembo from custody and returned the document found on him, underneath his shirt, when he was arrested three days before. In the best spy-thriller tradition, he was driven to the dark alley where he had been due to rendezvous with his Sudanese contact. While JATT operatives watched and kept their cameras rolling, he handed over the document to the diplomat who, in turn, gave him $100 as well as some Uganda Shillings.
In court, Kisembo gave a completely different story, denying that he had leaked any secret information. He said he had been forced to confess to having done so and that everything he had written or signed had been under duress. He claimed that he was the victim of a witch-hunt: he had leaked information about fraud within the ESO. That led to the President setting up a probe into the allegations of fraud and as a result he was now the target of a vendetta.
Judge Mubiru said it had been proved that the information in the document was “intelligence or secrets” of the ESO. He also found that Kisembo had been an “exemplary employee” until this incident.
But the judge rejected the video-recording made at the handover of the document and the money. He considered in detail the validity of various kinds of police deception to catch people committing crimes and stressed that the courts had the power to exclude evidence obtained under duress or police incitement, for example.
In this case, the court had to consider whether to approve the way the police had obtained evidence and whether that evidence should be admitted in court. “I find that when the law enforcement officers took (Kisembo) out of custody, handed him the document, drove him to the scene … he was not acting on his own volition.” They exerted an influence on him to commit an offence that “would otherwise not have been committed”, and the video was thus rejected and excluded from evidence.
Kisembo claimed the “confession” and other documents he signed were not valid – so what other evidence was there in the case?
He had himself admitted leaking information about fraud and staff payments and the court had to consider whether this could be evidence showing that he might well have leaked the disputed document. But the facts of the two incidents were so different that one could not be used to corroborate the other, Judge Mubiru found.
There was also a problem with the “confession” that Kisembo signed, but later retracted on the grounds that he had been forced to write it and that its contents were not true. The judge said there was a serious internal problem with the document and that the dates in the confession did not square with the facts. “The disparity in dates of more than a week points to deliberate falsehood rather than a mistake,” he said.
So, of what crime might Kisembo finally be convicted, the judge asked. There was the possibility of finding him guilty of attempted unlawful disclosure of information, based on the claim that he had been found with the document when he was searched. But evidence for this offence was also unsatisfactory, he said. The document was never exhibited in evidence; it was never marked when it was recovered, and a search warrant had not been issued. The ESO could have produced “real evidence” of the alleged surveillance of the Kisembo before his arrest, and of his actual arrest at the gate, but did not do so. That failure “invokes an adverse inference against the prosecution” given Kisembo’s explanation that he was arrested at the office of another employee while on an official errand, and not at the gate.
Since neither of the two counts against Kisembo had been proved, the court ordered that he was to be acquitted and released at once.
It is a fascinating story. All the more because such a trial might well have been held in camera in certain countries: Uganda and its courts must be congratulated for such openness.
- Newsletter, Judicial Institute for Africa (Jifa), 21 March 2019