Human rights dons, lawyers slam Ugandan courts, chief justice over independence

Story source: URN

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.

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.