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Brace for miscarriage of justice as army court rises above the law

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By JOACHIM BUWEMBO

Uganda has a newish Director of Public Prosecutions, a new Chief Justice, a brand new Speaker of Parliament and very new Attorney General. These four lawyers are in the coming months going to oversee the elevation of the legal profession to a science of exactitude. But this being a very weighty subject, let us start it off on a lighter note of hard humour.

Many years ago, the Monitor newspaper published gossipy story on Uganda’s revolutionary military justice. The setting was Acholi sub region in northern Uganda where rebel insurgency persisted for two decades. Clearly labelled ‘Monitor Gossip’, the story told of a teary young lady who limped to a makeshift military camp called a detach, to report that she had been raped by a soldier.

The detach commander quickly called a parade of all his men and ordered a sergeant to pick out the rapist. The sergeant ordered the men to drop their pants and did a quick inspection.

Towards the end of the line, he got his man. Of his five natural senses, the sergeant did not even get to use taste, touch or hearing, and used only the remaining two to identify the culprit. A guilty verdict was returned, they zipped up, tied their comrade to a tree, constituted a quick firing squad and dispatched his soul to hell.

The topic in Uganda today is the proposal to scrap the right to apply for bail in capital offences by the Executive which is repeatedly invoking field army court precedents, which many lawyers are opposed to. But the lawyers are not the law makers, it is the politicians in the Legislature who will turn judicial procedure into a physical science, closing that age old high debate of arts vs sciences. Under the proposed amendment, once charged with a capital offence you will stay in jail until the case is finally determined, which could take a year plus.

The revolutionaries driving the Executive think bail pampers ‘criminals’ (accused persons), ignoring the victims, thus causing mob justice which sees suspects lynched by angry members of the society.

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Hopefully before the amendment is presented, enough consultations will be done to understand other major causes of mob justice that claims lives and maims suspects besides bail. Going by media reports for example, a number of extra judicial killing and maiming is perpetrated by irate stepmothers against hungry stepchildren accused of stealing food in their own home or failing to declare a coin of balance when sent to a local kiosk.

Other perpetrators of illegal justice are angry lovers who burn suspects of ‘stealing’ their partners with acid. It is not only granting of bail and police bond that makes aggrieved Ugandans take the law into their hands to kill and maim the suspects whose lives the amendment seeks to protect by keeping them on remand.

Chief Justice Alphone Owiny-Dollo has argued that judges don’t just rise on the right or wrong side of the bed to grant or deny bail, but that they judiciously weigh the circumstance to make the decision. But the Chief Justice does not make the laws – it is politicians who do. So he will have to abide by their decision when they scrap the bail.

Past and present leaders of the Uganda Law Society have argued themselves hoarse against the anti-bail proposal. Then they have resorted to sulking and consoling themselves that the those supporting the anti-bail amendment may one day become its victims. They cite long dead Ugandan politicians of the independence era who supported a law for detention without trial and later found themselves being detained without trial.

The sulking lawyers say that once the application for bail is scrapped, the country will be rife with framing. That brings in the Director of Public Prosecutions (DPP). How will she know that all the people whose charging she will sanction are not being framed, and given the ‘speed’ of our courts, it could take long before their innocence is established?

Lawyers argue that while by law the DPP is not supposed to operate under influence of anybody, she is being increasingly bypassed by the state which takes civilians, sometimes opposition politicians, to the military court, which operates under direction of the commander in chief.

While the constitutional court recently ruled that civilians must never be tried in the army court, the Attorney General has appealed this in the Supreme Court, ferociously arguing for civilians (accused of possessing ‘government stores’) being tried by the military. The lawyers are in for more sulking.

Joachim Buwembo is a Kampala-based journalist. E-mail:[email protected]



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