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Wednesday 31 July 2024
When the Uganda Judiciary promotes the neo-liberal dictator by oppressing the poor: Human rights dons, lawyers slam Ugandan courts, chief justice over independence: Judiciary is slipping away from being a bastion of justice
Chief justice Owiny-Dollo
Judiciary is slipping away from being a bastion of justice
The Ugandan judiciary is increasingly perceived as a tool of state oppression rather than an impartial arbiter of justice.
In the recent past, it has been observed
that magistrates are exploiting their power to impose harsh bail
conditions and remand suspects such as protesters, transforming the
legal system into a mechanism for punishing dissent. This blatant
manipulation of the law undermines the very principles of fairness and
impartiality that the judiciary is meant to uphold as enshrined in the
Constitution.
Instead of
protecting the rights of citizens, the courts appear to be
rubber-stamping state injustices, eroding public trust and highlighting a
troubling trend towards judicial partiality and state capture. The law
is being brazenly weaponized against the people, with the scales of
justice tipping firmly in favour of the ruling authorities.
For instance, the state makes a choice
between taking the suspects into police custody or rushing them to court
with trumped-up charges. It is easier to get a police bond but harder
to secure bail at court. The purpose of taking suspects to court is not
to accord them fair trial but find a way of punishing them before trial
and to appear as if the law is followed.
The principle of presumption of
innocence which is a cardinal doctrine in our Constitution seems
abstract in the minds of magistrates. This erosion of judicial
independence is a grave threat to democracy in Uganda.
A robust, independent judiciary is the
cornerstone of a free society, providing a critical check on the power
of the executive and legislative branches. When the courts become
subservient to political interests, it gives the government free rein to
trample on the fundamental freedoms of the people.
The imposition of harsh bail conditions
and the arbitrary detention of protesters without due process are clear
violations of human rights. These tactics are designed to chill dissent
and stifle the legitimate expression of grievances. They strike at the
heart of the democratic principles that Uganda claims to uphold.
The Ugandan government must take
immediate steps to restore the integrity of the judiciary and reaffirm
its commitment to the rule of law. This will require a complete overhaul
of the judicial appointment process, the implementation of robust
mechanisms to safeguard judicial independence, and the prosecution of
any magistrates who have abused their power for political ends.
Failure to address this crisis will only
deepen the public’s mistrust in the legal system and further erode the
foundations of Uganda’s democracy. The people deserve a judiciary that
is truly independent, impartial, and dedicated to the pursuit of justice
for all. Anything less is a betrayal of the nation’s democratic ideals.
Human rights dons, lawyers slam Ugandan courts, chief justice over independence
Uganda's
leading constitutional and human rights lawyers have launched scathing
attacks on the judiciary and chief justice, Alfonse Chigamoy Owiny-Dollo, demanding a return to the rule of law and constitutionalism.
Dr Busingye Kabumba, Dr Adrian Juuko, and George Musisi say the judiciary, and in particular chief justice Owiny-Dollo
has been salient amidst what they termed as judicial impunity. The
lawyers' anger stems from the way courts have handled cases related to
the recent arrest, remand, and bail applications of anti-corruption
protestors.
The lawyers join the public chorus that the
judiciary of Uganda has turned an accomplice with the state authorities
in serious violations against human rights. Saturday Monitor
over the weekend published a screaming headline titled “Judiciary on
trial”. The newspaper criticized the courts for entertaining defective
charge sheets, demanding stringent bail conditions, and accused the
judiciary of silent dissent instead of upholding the rule of law and
constitutionalism.
The judiciary later stated in response that
its role is not to descend into the arena of disputes but rather wait
for the matters that are filed before the courts for determination.
“The
criminal justice system involves, among others reading charges to the
accused, consideration of bail which may or not be granted. These are
judicial processes that are handled with judicial discretion,” read part
of the statement as the Judiciary promised to follow due process in
line with the law
However, constitutional lawyer and Makerere Law
School Don Busingye rubbished the judiciary’s statement and stated that
the courts have become transitional centres to transfer suspects
arrested from the streets to prison.
“You know once the police
officer and the DPP say this person is accused of being a common
nuisance, it’s the judge’s or the magistrate’s role simply to process
your papers and you are sent to prison. Is there no role for the
judiciary in that instance?” asked Kabumba.
Busingye
was one of the speakers at X Spaces where the issue of judiciary
independence was discussed. He said judicial independence and immunity
while important; do not mean or include judicial impunity. Busingye
insists that what Uganda has now is a judiciary on trial.
“A judiciary that stands exposed, with
chief justice who is silent, basically a third arm of government that is
not acting in the way it is supposed to be,” said Busingye.
Busingye
and the Uganda Law Society (ULS) president, Bernard Oundo have been
part of the protracted struggle to secure bail for the peaceful
demonstrators who demanded the resignation of the speaker of parliament
Annet Anita Among. The two lawyers and others have criticized the courts
for stringent measures for bail applicants and their sureties. Some of
those measures have ensured that the suspects remained on remand even
when they were entitled to bail.
Oundo stated that bail is not
designed as an income-generating activity to which bail applications are
made. Oundo restated a ruling by justice Rosette Comfort Kania, “What
is pertinent about sureties is that there must be an indication that
they have been advised of their roles as sureties, that they have
identified themselves properly, and have proved and shown their
authoritative relationship in respect to the applicant. Showing that
they are able to exercise their authority and command the appearance of
the applicant in court when needed.”
Human rights lawyer, George
Musisi, also managing partner at PACE Advocates also criticized the
courts on the way they have handled bail applications. He says the
impunity in the judiciary has been going on because some authoritative
voices keep quiet. He said while there is no political case unit taught
at law schools, the courts in Uganda have invented what he describes as a
political case.
“You find
that those cases which are deemed political are hot potatoes to touch.
It becomes even harder to handle these cases.”
Musisi said he
has witnessed some judicial officers demanding what he described as
extralegal requirements during bail applications yet they are not
anchored anywhere in the law.
“You reach a court and a judicial
office tells you our practice here is this. When the practice is not
anchored in the law," he said.
"The issue of sureties, you find court
saying sureties are not from the jurisdiction despite court
pronouncements including High court pronouncements that sureties don't
necessarily have to come [from the same jurisdiction]. They can come
from any part of Uganda. Then one time the state attorney said you know
we're supposed to verify the location of the accused person whether the
LC of the accused person indeed comes from there. Then I said but the
charge sheet describes him as coming from there. Do you doubt your own
charge sheet? Which parts do you believe and which parts don't you
believe?"
The most recent of such incidents was on Tuesday when
the magistrate denied bail to Aljab Musinguzi a resident of Nakawa
Division because the introduction letter from the LC I chairperson was
different from his area of residence yet the sureties of the applicants
had been identified.
Chief justice Owiny-Dollo
Kabumba says that under Article 23(6) of
the constitution, there is a right to apply for bail, and the law
provides that one can be released under the conditions that the court
sets.
"But does not take away from the fundamental premise that
every accused person has a fundamental right to bail. Which is routed
from the presumption of innocence. You are presumed innocent until
proven guilty. You are presumed innocent until proven guilty or until
you plead guilty. What is happening in Uganda is that the judiciary
seems to be applying the presumption of guilt. Even from the moment of
the arrest, there seems to be a general presumption within the judiciary
that you are presumed guilty. Once you are charged and the charges are
sanctioned, it is even worse," he said.
He said there are so many constraints that the judicial officers are pacing t the right to liberty.
“The idea that your surety must be a
substantial person. What is this? It is steeped in colonialism. Who is a
substantial person? The idea is that you must bring a letter of
introduction from your employer. What if I am self-employed but the
accused person is my son or daughter? It is steeped in the colonial
mindset,” said Busingye.
Owiny-Dollo challenged
Busingye is challenging the chief justice Owiny-Dollo and his deputy, Richard Buteera to come out and speak for judicial independence.
“It
does not mean that even in a dictatorship, the judiciaries cannot speak
and cannot struggle, and cannot fight. For God’s sake, during the Amin
period, we had judges and magistrates who stood out for what was right.
In September, this judiciary is going to have Ben Kiwanuka Memorial… but
what did Ben Kiwanuka do? Ben Kiwanuka stood up and sacrificed his own
life to preserve the ideals of constitutionalism.”
“The chief
justice cannot be silent when such grave violations of human rights,
constitutional liberties, and the constitution itself are going on. We
have been asking since last week. Where is the chief justice?” he asked.
