The debate on soldiers re-arresting suspects released by courts of law is back in the news. This week, four of the eight suspects charged with the murder of former Assistant Inspector General of Police Andrew Felix Kaweesi were re-arrested at the Kololo-based International Crimes Division of the High court.
Mr Yusuf Nyanzi, Mr Jibril Kalyango, Mr Joshua Kyambadde, and Mr Yusuf Mugerwa, were picked up together with their lawyer, Mr James Mubiru, shortly after being discharged by the registrar of the International Crimes Division (ICD) of the High Court, Ms Esther Nasambu, following their release on bail by Justice Lydia Mugambe.
Uniformed and plain-clothes security operatives locked the main gate of the court to block the suspects from exiting the court grounds. The remaining suspects, including Abdu Rashid Mbazira, Aramathan Noordin Higenyi, Bruhan Balyejusa and Shafiq Kasujja, had earlier on been returned to Luzira prison because they have pending charges in Nabweru and Mukono Magistrate’s Court.
On Thursday, Bugiri Municipality MP Asuman Basalirwa, a lawyer and president of Opposition party Jeema, asked Prime Minister Ruhakana Rugunda about government’s position on re-arresting individuals that have been released by courts of law.
Dr Rugunda, who by his designation must answer questions from MPs on Thursday afternoons, did not dwell on the question for long. He only sought to assure Mr Basalirwa and Parliament that the government does not condone the practice and would deal with whoever engages in such acts.
This debate is already very old, however. During President Museveni’s rule, the army first staged a raid on the courts of law in 2005, when commandos of the Joint Anti-Terrorism Task Force Urban Hit Squad, invaded the High Court to re-arrest treason suspects who had been released on bail. The men had been jointly accused with Dr Kizza Besigye, who had just returned from South Africa to challenge President Museveni for the second time. They, in fact, carried out two sieges, the first siege on November 16, 2005, and the second happened on March 1, 2007.
In 2007, Dr Kizza Besigye and his co-accused in the treason trial petitioned the Constitutional Court over what they called abuse of their rights.
They cited a number of grounds to argue their case for dropping the cases, including the fact that the court had been besieged by soldiers who came to be famously referred to as the Black Mambas.
In 2010, the court ruled thus: “We have found that what the security and other State agencies did at the premises of and headquarters of the third organ of State (Judiciary), was an outrageous affront to the Constitution, constitutionalism and the rule of law in Uganda.”
The judges added: “This court cannot suction any continued prosecution of the petitioners where during the proceedings, the human rights of the petitioners has been violated to the extent described above. No matter how strong the evidence against them may be, no fair trial can be achieved and any subsequent trials would be a waste of time and an abuse of court process.”
The coram, led by Justice Mpagi Bahegeine, also had Justices Amos Twinomujuni, George Engwau, Constance Byamugisha and Augustine Nshimye Sebuturo.
The fallout between the army and the courts over this case was massive. The State alleged that Dr Besigye and his co-accused had set up a rebel outfit named the People’s Redemption Army (PRA), through which they aimed to overthrow the government of Uganda. They were charged in the High Court over the matter, but the army also proceeded to launch charges against the accused in the General Military Court Martial.
The lawyers of the accused argued that it would be ‘double jeopardy’ for the accused to be tried in two courts using the same or similar facts and at the same time. When the accused seemed to register victories in the civilian courts, the army got angrier and acted, hence the siege.
Another argument that ensued at the time was whether the General Military Court Martial is equivalent to the High Court, a position which the army strongly hammered. To underline the position of the army in the country, Gen David Sejusa, then still called David Tinyefuza, proclaimed the army as the “fourth estate”, a reference usually spared for the media. In his understanding, the army came fourth in ranking, only behind the Executive, Legislature and Judiciary.
What started like a one-off act, which attracted widespread condemnation with Justice James Ogoola, who was Principal Judge in 2005, calling the attack on the High Court as “a day of infamy,” has now become somewhat commonplace. About a dozen such cases of rearrests have been registered since then.
Mr Tamale Mirundi, a political commentator, who was previously the spokesperson of the President, says those who re-arrest suspects in the precincts of court have one sole purpose – to defeat justice.
Mr Mirundi argues: “Once it is discovered that a suspect was tortured or the process of trial was abused, you will not secure a conviction. So, who do the people who re-arrest suspects and break the law are working for? They work for the suspects.”
Some cases of rearrests after bail is granted
February 19, 2019. Herbert Muhangi, a former commander of police’s Flying Squad Unit, is rearrested by UPDF officers, who pick him up outside the court martial premises in Makindye and force him onto military double-cabin pick-up truck. To date, he remains in custody. Shortly before his re-arrest, he had been granted a non-cash bail of Shs10m by the court martial presided over by Lt Gen Andrew Gutti. His sureties were bonded at Shs5m non-cash. Muhangi is charged with others, including former Inspector General of Police Kale Kayihura and Col Atwooki Ndahura.
Between 2012 and 2016, the prosecution contends that by omission and commission, Muhangi and his co accused aided and abetted repatriation of Rwandan exiles, refugees and Ugandan Citizens to Rwanda. It is also alleged that between 2010 and 2018, the officers, using their various positions in police, allowed the use of fire arms to unauthorised persons such as the members of Boda Boda 2010 headed by a Abdullah Kitatta, who is also in jail on separate counts of being in illegal possession of military hardware.
April 10, 2018. Armed men, including police officers, storm the International Crimes Division (ICD) of the High Court and arrest Dr Ismail Kalule moments after Justice Moses Mukiibi had lectured them against the act.
January 12, 2017. Armed men storm the premises of Gulu High Court and re-arrest Dan Oola Odiya, a Uganda Peoples Congress (UPC) mobiliser and his two co-accused, Kenneth Otto and Sam Ojok Obama, after the Director of Public Prosecutions (DPP) dropped charges against them.
March 1, 2005. Security forces raid the High Court to re-arrest five PRA suspects bailed after 15 months of detention.
May 27, 2016. Dr Ismail Kalule and the others; Abubakari Batemyetto (Ugandan), Omar Awadh Omar, Yahya Suleiman Mbuthia and Mohamed Hamid Suleiman (Kenyans) are immediately re-arrested after being released from Luzira. Justice Owiny-Dollo had acquitted them following a full trial.
November 12, 2018.
Six “Kisenyi al-Shabaab terror suspects” are re-arrested by plain-clothes security operatives shortly after being acquitted of terrorism-related offences by Justice Michael Elubu.
The six, including Mohamed Abdulkdir, Abdi Abdullahi Bootan, Hassan Abduwali Mohamoud, Mohammed Ahmed Gele, Yusuf Osman Hussein and Mohamad Yusuf Farah are surrounded and bundled into a waiting vehicle. Prosecution had alleged that the accused and others still at large in September 2015, in different places in Uganda, Kenya and Somalia, aided, abetted and or rendered support to al-Shabaab, knowingly and having reason to believe that such support would be used for or in connection with the preparation and commission of acts of terrorism.
Prosecution further alleges that the suspects between 2010 and September 2014 belonged to Al-Qaeda and its affiliate al-Shabaab, which are both listed as terrorist organisations under the Anti-Terrorism Act 2002 of Uganda. The suspects were rounded up in a joint security operation in Kisenyi in 2015.
Deputy CJ statement
Re-arrest of Kaweesi murder suspects was high-handed
Over time, the Judiciary has noted with concern the increased and persistent cases of interference in the administration of justice by security agencies.
The recent incident being September 11, [Wednesday] where four murder suspects were wantonly, crudely and brutally re-arrested at the precincts of the International Crimes Division (ICD) of the High Court in Kololo, which had just released them on bail.
The suspects: Yusuf Nyanzi, Jibril Kalyango, Joshua Kyambadde and Yusuf Mugerwa, are on trial before ICD for the March 2017 murder of Assistant Inspector General of Police, Andrew Felix Kaweesi.
The security agents, some in plain clothes, took charge of the main gate of the court and blocked the accused persons from leaving the court precincts; and then arrested them. They later whisked away the accused persons to an unknown destination, together with their attorney, James Mubiru.
This high-handedness in the re-arrest of persons released by courts is a direct affront to the much cherished rule of law in Uganda. An advocate is an officer of court and must be accorded protection when he or she is executing professional services to accused persons or litigants in courts of law.
Such blatant actions, as this one, sadly leads to people’s loss of faith in the courts of judicature, which can only result in grave ramifications where people choose not to come to the courts of law; but to take the law into their own hands.
Furthermore, the continued rearrests of suspects in the precincts of the court, yet again, by security agencies is a sad reminder that more still needs to be done to instill the importance of the rule of law in the institutions charged with keeping law and order.
Even where courts have made decisions considered to be wrong, the proper course of action is to seek redress within the law.
We, therefore, condemn in the strongest language this wanton disregard to the independence of the Judiciary, which is contrary to the protection of the Judiciary enshrined under Article 128 of the Constitution.
We call upon security agencies to refrain from flagrant abuse of the law and hope the perpetrators of such acts are brought to book as a clear and unmistakable statement that actions such as this one cannot be tolerable.
The courts of judicature will continue to pursue the due process and ensure that persons accused before courts of law are accorded a fair trial to establish their guilt or innocence.
Alfonse Chigamoy Owiny-Dollo
Ag. Chief Justice