Court strips minister of powers to release mentally ill prisoners

The landmark court ruling was delivered by High Court judge David Batema (pictured) on July 10 in Fort Portal. File photo

What you need to know:

Reason. Judge says the Constitution demands that the Judiciary must be independent in executing its work, and that having to wait for the Justice minister’s orders interferes with its independence.

KAMPALA. A landmark court ruling has stripped Justice minister of powers to release mentally challenged prisoners.
The landmark court ruling was delivered by High Court judge David Batema on July 10 in Fort Portal.
Core to the judge’s ruling is that the old practice of waiting for the minister’s orders as precondition to release mentally challenged prisoners was giving away the judicial powers to the minister, which powers are vested in the Judiciary by the people of Uganda.
The judge said the Constitution demands that the Judiciary must be independent in executing its work, and that having to wait for the minister’s orders interfered with its independence.

Though the judge did not directly rule on the children who are in conflict with the law and are also waiting for the minister’s orders to be released, the same landmark ruling could apply to such scenarios.
“I am of the strong belief that the trial court retains the power to issue special orders for the confinement, discharge, treatment or otherwise deal with the prisoner that is insane or has ceased to be insane. That criminal file remains open, pending the Judge’s special orders. It is not done with until all is done with the prisoner” ruled the judge.

He added: “Any court waiting for the minister’s orders is giving away the independence of the Judiciary and is in one way or another accepting to be ordered around by the minister who, as experience has shown, is too busy to issue the orders. Courts should not allow any law or practice that ousts the jurisdiction of court and hold the courts at ransom in judicial matters. I stand to be corrected.”
According to the spokesperson of Uganda Prisons, Mr Frank Baine, there are about 30 mentally challenged prisoners who have for long been waiting for the minister’s orders to be released.

Judiciary spokesperson Erias Kisawuzi said the court order is valid until it is overturned.
He said as it stands now, Justice Batema’s ruling is enforceable and that since High Court decisions set precedents, other court can apply it in similar matters.
Lawyer James Nangwala said the landmark ruling sounds legally right to him.

“The duty of resolving disputes and interpreting the law is invested with the courts of law but whether the minister’s orders were administrative, that is a matter I have to look at,” said Mr Nangwala in a telephone interview last Friday.
The President of Uganda Law Society, Ms Ruth Sebatindira, welcomed the ruling saying: “ I agree that it’s high time courts breathed life into laws in line with provisions of the Constitution. We have many laws that are not in conformity with the provisions of our Constitution.”

The ruling followed a petition filed by Eric Bushoborozi, who was facing murder charges after he cut off his child’s head in 2002, claiming that he was killing a snake.
Bushoborozi was tried by Justice Rugadya Atwooki, who found him not guilty of murder because he was insane.
He was then remanded on December 1, 2006 to Katojo Prison, pending the minister’s orders as to where he should be taken for treatment and other course of action.
Bushoborozi’s name along with others had on several occasions since 2006 been submitted to the minister to issue his orders, but in vain.

He was treated for his mental illness and gained his stability a couple of years ago.
It is upon this background that Mr Bushoborozi, who had been on remand since 2002, through his lawyer Mr Cosma Kateeba, successfully petitioned court.
State prosecutor Adam Wasswa, during the hearing of the case, conceded that the case was a complex one as there were no express procedures or solutions to the same.
However, he suggested that Busoborozi could apply to court to compel the minister to issue the said orders for his release.

The judge, in his landmark ruling, noted that there was need to be innovative and make adjustments in the law, thereby coming up with a precedent that is expected to be adopted by all courts unless challenged.
The judge directed the deputy registrar of the court to bring the ruling to the knowledge of the Principal Judge and other courts that could be faced with such dilemmas.
“The need for reform in the law relating to criminal lunatics remanded pending the minister’s orders have been made by so many judges in their reports on criminal sessions and decisions. We need not lament more than that,” the judge ordered.

“The Deputy Registrar sitting at Fort Portal is hereby directed to serve a copy of my ruling to the Rules Committee and the Principal Judge with a view of prompting the development of some rules and or Practice Directions along what I have recommended in this ruling,” he added.