Torture of Bobi Wine, Zaake nullifies prosecution’s case against them

Sunday September 2 2018



Norbert Mao

Norbert Mao 

By Norbert Mao

Anyone who knows President Museveni can tell that the events surrounding the violence in Arua have made him hot under the collar. A man known for keeping cool under pressure has lashed out like never before.
Not only has the turbulence following the Arua fracas revealed Museveni’s Achilles Heel, it has also showed that the government officials are not singing from the same hymn book.

My sources told me that a top government official advised the President that the charges of illegal possession of firearms against Bobi Wine would not stand. Eventually, the bogus charges were dropped and new charges were preferred against him.
This brings us to what Chief Justice (CJ) Bart Katureebe said.

The CJ must be saluted for saying court will not entertain tortured suspects. And he stands on very solid and binding legal authority.
In the case of Uganda vs Robert Ssekabira and 10 others, Justice Ralph Ochan made a landmark ruling when he said: “We cannot stand by and watch prosecutions mounted and conducted in the midst of such flagrant, egregious and mala fide violations of the Constitution and must act to protect the constitutional rights of the petitioners in particular and the citizens of Uganda in general as well as the rule of law in Uganda by ordering all the tainted proceedings against the petitioners to stop forthwith and directing the respective courts to discharge the petitioners.”
In Republic vs Amos Karuga Karatu (Kenya) High Court Cr. Case No. 12 of 2006 the court per Makhandia, J categorically stated: “The time is near for the Judiciary to rise to the occasion and reclaim its mantle by scrupulously applying the law that seeks to secure, enhance and protect the fundamental rights and freedoms of an accused person.
“A prosecution mounted in breach of the law is a violation of the rights of the accused and is, therefore, a nullity. It matters not the nature of the violation… it matters not that the evidence available against him is overwhelming. As long as (there is violation of the rights of the accused person) the prosecution remains a nullity.”
In the British case of R vs Horseferry Road Magistrates Ex parte Bennet (1994) 1 A. C. 42 the Lords stated: “...the judiciary accepts responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law… (Authorities in the field of administrative law contend) that is the function of the High Court to ensure that the executive action is exercised responsibly and as parliament intended.
“So also it should be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it…. The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power regarding their behaviour as an abuse of process and thus preventing a prosecution.”
Therefore, I don’t see how the case against Bobi Wine and his colleagues can be entertained any further by any court of law. In fact, a petition should be made to the Constitutional Court challenging the whole process.
In Dr Kizza Besigye vs Attorney General, the Constitutional Court stated the law in these words: “This court cannot sanction any continued prosecution of the petitioners where during the proceedings the human rights of the petitioners have been violated to the extent described above. No matter how strong the evidence against them may be, no fair trial can be achieved and subsequent trial would be a waste of time and an abuse of court process.”

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