Why Museveni shouldn’t lose sleep over bail

Abuse. Security operatives dressed in plain clothes arrest Ahmed Ssenfuka (2nd left), one of the suspects in the Kaweesi murder who was granted bail on November 7 last year. PHOTO BY ABUBAKER LUBOWA.

What you need to know:

  • Law matters. During his Budget Day speech, President Museveni directed the Judiciary and police to cease releasing suspected killers on bail and bond. Saturday Monitor’s Ivan Okuda puts this debate in historical, political and legal perspective.
  • Foundation for Human Rights Initiatives vs Attorney General (Constitutional Petition No 20 of 2006), the Constitutional Court, that was presented with sections of the UPDF Act, Police Act and Magistrates Courts Act, which the petitioner felt contravened the constitutional provisions on liberty such as bail, offered important counsel.

Speaking to the country after the National Budget was read last week, President Museveni expressed disdain for the rule of law and constitutionalism, castigating bond given by police and bail granted by the courts of law. Except the forum, procedure and formalities involved, the two terms mean one and the same thing in substance; they are conditional avenues of and to temporary freedom for a suspect or an accused person, which goes to the root of the presumption of innocence enshrined in Article 28 of the 1995 constitution of the Republic of Uganda as amended time and again.

Clad in a deep yellow shirt, the President, who had explained why he didn’t go for the occasion draped in military attire, traversed the question of security and addressed the Chief Justice and his deputy on the question of bond and bail.
“Someone is suspected of killing our people and you give bail….I don’t want to hear of bail,” Mr Museveni, who asserted that he was “speaking as President and leader of the resistance”, roared.
The deputy Inspector of Police, Brig Sabiti Muzeeyi sat next to Commissioner General of Prisons, Dr Johnson Byabashaija, who smiled blushingly, in an ostensible display of a man imbibing wisdom from the Commander-in-Chief.
Brig Sabiti took notes while nodding his head, in what read like a nod to the president’s verbal directive. Both the police and prison chiefs, at least from body language, saw sense in the President’s words.

Chief Justice Bart Katureebe was uneasy and imperceptibly muttered words to himself as his deputy looked on in restrained awe.
It is no shocker that the Judiciary would later issue a statement attributed to the Chief Justice written with a tone measured enough not to antagonise the President or attract naughty screaming headlines that would portray a clash between the Executive and Judiciary, but also assertive to the effect of maintaining court users’ confidence in the Judiciary, while putting a foot forward in defence of rule of law.
There was little surprise to followers of Uganda’s politics since 1986 when the President captured power with his legally impotent directive. In a 1987 address to the Uganda Law Society, he discusses the question of rule of law, the place of courts and rights and doesn’t conceal his disapproval of some concepts he considers too western and suited for developed societies.

The President’s frustration with bail and bond is not without basis. He comes from a society whose membership resorts to mob injustice partly because of faint confidence in the formal justice system. Citizens arrest a thief caught red-handed with stolen cattle, he admits to the crime, seeks leniency, he is handed over to police, gets bond, he is back to the streets, causes terror, goes through the cycle of bond or bail and the people cannot do anything about it. Police officers also share this frustration. In fact, in some instances, hard core criminals are booked into police cells and contemptibly insult law enforcers, assuring them they will be out soon. Indeed they are freed, thanks to bond and bail, sometimes to harass photojournalists who take their pictures during police parades.

That is before one delves into the murky underworld of corruption, especially among magistrates who grant bail in exchange for bribes.
It defeats the spirit of the law and is an abuse of the discretion of the judicial officer. It doesn’t add value to the fight against crime but worsens matters when cartels and empires of criminality involving crooked lawyers, judicial officers whose integrity is not worth the ink and paper appointing them, emboldened criminals and police officers in a cobweb relationship glued by abuse of process.
But where the President loses the argument and his observation of the weakness in the justice system is when he directs that there should be no bail for suspects of capital offences such as murder, terrorism and rape. In effect, the President seeks to throw the baby with the bath water. His advisors have also been economical with the truth of the picture on ground to him and either he has been ably advised on the position of the law or he has chosen to do what he did in his 1987 speech to the Uganda Law Society; publicly assert that rights like bail and bond are utopian and out of touch with the circumstances of our society. Maybe. Maybe not!

Why the President should not worry:
First, President Museveni should be happy that he is presiding over a country with a fairly progressive constitution promulgated under his administration. The 1995 Constitution was a departure from the old legal regime where some offences such as rape and murder were non bailable.
Singapore and Malaysia still have non-bailable offences such as drug trafficking, terrorism and murder, although their wheels of justice move faster than ours. In essence where Uganda was pre-1995 is where these countries are today.
Mr Museveni’s verbal directive and ideological configuration seeks to return Uganda to pre-1995 days. Democratic consolidation and entrenchment of fundamental rights and freedoms is not nourished by nutrients of a ‘four steps forward six steps backwards’ journey. If anything, progressive voices in those countries are moving towards a system akin to ours where any offence is bailable. It is the practice of and by civilised nations.
The President and those who think like and support him on this debate should be reminded that bail is at the heart of the presumption of innocence, which is underpinned in our Constitution, case law and jurisprudence built over centuries across geographical space and over historical time in the Commonwealth and beyond.

Whereas it is contentious to argue that having a regime such as that in Malaysia where some offences being not bailable doesn’t take away the presumption of innocence, it is valid to advance the argument that to try to limit the reach of bail to only (non-serious offences) and lock out accused persons from the doors of the same simply because the state suspects they committed rape, murder and terrorism, goes a long way to trample on freedoms and human rights to immeasurable proportions, again, never mind that in and of itself doesn’t whittle down the presumption of innocence on the face of it.
The risks involved, however, are so enormous that no right thinking member of government should wish it on their worst enemy. Here is why.
In the pre-1995 era when rape was an offence for which one wouldn’t get bail, the Chief Justice told this writer: a man found another in the act in bed with his wife. He reported a case of rape to police, investigations done indicated the two had had an affair before and after marriage. Rape was not only a product of the figment of infantile imagination of the enraged lover but also his tool, using police and court to send his competitor to jail for at least a year. A man who would at most be guilty of adultery spent more than a year in jail.

Fast forward to 1995 when the Constitution recognised bail as applicable to all offences. We have had cases of men and women in this republic who come into collision with the law sometimes because they are framed, such as Dr Kizza Besigye’s rape trial in 2005, at times over fights in business, politics and matters of the heart. With a corrupt media and justice system, it takes your rival a few hundred dollars to get you in jail, damage your reputation before the courts find you innocent. There are no limits to the darkness of man’s heart, to borrow British author William Golding’s words in Lord of the Flies.
The other scenario is a genuine mistake in the course of investigations that lands anyone in trouble or the State doing a shoddy job and failing to pin the accused to the satisfaction of court. By the time you zero down on the right killer, if at all, so many innocent people have spent time in jail.

The case of the Muslim clerics, who were arrested and charged with the murder of their peers offers lessons. The High Court found all of them innocent of the charge of murder. They didn’t get bail. After more than three years on trial, they walked home free. There are even more examples of innocent people distilled through our criminal justice system after years on remand.
Add to that the fact that if you arrested someone and kept them in jail for two years without bail, the State could close investigations, awaiting a verdict but the murder of Andrew Felix Kaweesi has shown us that sometimes investigations can go so rogue that you have innocent people in jail as the criminals play hide and seek with the gods of justice.

Lessons
What do these scenarios teach us? First, the presumption of innocence is not an academic or western concept. It is about real people close to us and secondly, not everyone accused of committing an offence, however juicy the story sounds, is actually guilty. Thirdly, our criminal justice system is run by human beings with a margin of error twins towers above the (+3/-3) standard. Anyone can be a victim.
To that end, and finally on why the President should not lose his head over bail, the Constituent Assembly did a good job when in its drafting of the Constitution, made bail a right enjoyed at the discretion of court manned by judges, who, under the same Constitution, are duty-bound to exercise that discretion with utmost regard to the aspirations of the people of Uganda and with fidelity to Chapter 4 of the same, that is explicit on fundamental rights and freedoms, which are certainly in sync with the international body of law Uganda is a signatory to.
The Constitutional Court in Constitutional Ref No 20 of 2005, Uganda (DPP) vs Col. (RTD) Dr Kizza Besigye, when the DPP sought interpretation of Article 23(6) of the Constitution to determine whether the court has discretion to deny an accused bail summed the debate when it held that: “Under Article 23(6)(a), the accused is entitled to apply for bail. The word “entitled” creates a ‘right’ to apply for bail and not a right to be granted bail. The word may create discretion for the court to grant or not to grant bail. The context in which the word ‘may’ is used does not suggest otherwise.

At the back of the judges’ minds is the fact that interpreting the Constitution and in particular that part which protects and entrenches fundamental rights and freedoms, it must be given a generous and purposive interpretation as is captured in judgments in the Attorney General Vs Modern Jobe (1984) LRD 689 and Unity Down Vs Attorney General of Botswana 1992 (LRC 662) cases.
As Ford Foundation’s Vice President for Democracy, Justice and Free Expression, Martin Abregu noted in his speech at the launch of Prof Oloka Onyango’s book: When Courts Do Politics, recently, “No matter if we are talking about good or bad judicialisation of politics, it always comes together with the politicisation of justice. To the extent that political leaders are limited and confronted by the courts, we should be aware that there is going to be an increasing effort (and success) in controlling the Judiciary.”

Indeed, the courts have exercised this discretionary power sparingly, often to the fury of defence counsel and occasionally playing to the public gallery on cases that receive monumental media coverage or State interest. Mr Mathew Kanyamunyu, who faces charges of murder, was denied bail more than twice and granted the same when court found it fit. The Muslim clerics weren’t as lucky. Court kept them in the coolers until the end of their trial as it did with those who faced trial over the 2010 twin bombings in Kampala or Uwera Nsenga, who was convicted for the murder of her husband.

The author is a Special Projects and Investigations writer with Daily Monitor, lawyer and fellow with the Great Lakes Institute for Strategic Studies (GLISS).

House not on fire
Foundation for Human Rights Initiatives vs Attorney General (Constitutional Petition No 20 of 2006), the Constitutional Court, that was presented with sections of the UPDF Act, Police Act and Magistrates Courts Act, which the petitioner felt contravened the constitutional provisions on liberty such as bail, offered important counsel.

One of the issues the Attorney General rightly conceded was that sections 219, 231 and 248 of the UPDF Act contravene articles 20, 23 (1), 23(6), 28(1) and 28(3) of the Constitution and the Coram accepted that bail should not be refused mechanically simply because the prosecution wants such orders. Remanding an accused in custody is a judicial act. The court must in making such an order, address its judicial mind to it before depriving an accused person or suspect of his liberty. Conditions and restrictions imposed must be reasonable.

With regard to section 75 (2) of the MCA, it is not correct to say, court held, that it contravenes the provisions of Article 23(6).
That section lists offences excluded from the grant of bail by the Chief Magistrate, including an offence triable only by the High Court, an offence under the Penal Code Act relating to acts of terrorism, an offence under the Penal Code Act relating to cattle rustling, an offence under the Firearms Act punishable by a sentence of imprisonment of not less than 10 years, abuse of office contrary to Section 87 of the Penal Code Act, rape, embezzlement, causing financial loss, corruption, bribery of a member of a public body, contrary to Section 5 of the Prevention of Corruption Act; and any other offence in respect of which a magistrate’s court has no jurisdiction to grant bail.

On whether this is unconstitutional, former Deputy Chief Justice Leticia Mukasa-Kikonyogo (RIP), held in her lead judgement: “The accused’s right to bail is not absolute. It has to be enjoyed within the confines of the law. There has to be a constitutional balance of everybody’s rights. Denial to grant bail by Section 75 (2) does not contradict the accused’s inherent right of innocence. I do not accept the argument that the limitation amounts to suggestion that the accused is guilty of the offence he is charged with.”

The Supreme Court is yet to issue its judgement as this matter was appealed so the position could change. On section 76 of the law that created further road blocks for one to get bail, the court was of the learned opinion that: “It is to be noted that it predates the 1995 Constitution. In accordance with Article 274 of the Constitution, Section 76 may be construed with modification and adoption to bring it into conformity with the Constitution. It would, therefore, be null and void to the extent it contravenes the Constitution.”
Therefore, a reading of the authorities from our courts should comfort the President as it is abundantly clear and leaves no strand of doubt in the mind that the courts have not only been economical, cautious and judicious in granting bail, but have also rigorously put to test the different provisions in our law books in so far as their fidelity to the Constitution is concerned.

Again, the President should have confidence in the ability of judges to soberly exercise their discretionary power sparingly.
At the very best, the President should ask his librarian to pick him a copy of Thomas More’s play, ‘A Man For all Seasons’ wherein the character, More tells Roper: “And when the last law was down and the Devil turned on you, where would you hide, Roper, the laws all being flat? Do you really think you could stand upright in the winds that would blow then? Yes, I would give the Devil the benefit of law, for my own safety’s sake.” Thomas More’s age-old wisdom could as well be a good addition to Gen Kale Kayihura’s reading list as he reflects on a suggestion he made on extension of holding time from 48 hours to 90 days and lifting bail for some capital offences.

No cause for alarm
Previous cases. If the President asked his research assistants and legal team to do a survey of cases where courts have released suspects of murder, terrorism and rape on bail, he may be humbled to a shell of shock by the figures. There is no cause for alarm as the courts have, in specific reference to those offences the President is passionate about, adjudicated on bail applications with utmost caution, sometimes, again, for emphasis sake, to utter unfairness of the accused.

Even more, the Constitutional Court has time and again offered useful guidance on bail so much so that we now have a loose golden standard that guides judicial officers, never mind that some are inspired to make decisions based on corruption.