Could Ssegirinya, Ssewanyana case follow others to court graveyard?

The dust could have settled down after two Opposition Members of Parliament (MPs) Muhammad Ssegirinya (Kawempe North) and Allan Ssewanyana [Makindye West] were released on bail by the  High Court in the central region city of  Masaka after spending more than 17 months in incarceration with charges including murder, attempted murder, and aiding and abetting terrorism hovering over their heads.

The Director of Public Prosecutions (DPP) moved not to oppose the MPs’ bail application as she had done on previous occasions, which aroused debate from the paranoid public on whether the Opposition had forged a deal with the ruling National Resistance Movement (NRM), and the court process was nothing but a formality.  
There has been fatigue over the case that has been tossed between courts in Kampala and Masaka, with the Judiciary coming under criticism for not punishing the DPP’s procrastination. Yet following the release of the duo, without much difficulty, politics has overridden everything, with the Opposition unsure whether to celebrate the release of the two, with some saying they were only released once it was greenlighted by their nemeses in power. 

ALSO READ: Bobi Wine breaks silence on MPs Ssegirinya, Ssewanyana release

The National Unity Platform (NUP), the two MPs’ party, has predictably denied such allegations. Leader of Opposition in Parliament (LOP) Mathias Mpuuga has also vehemently denied the accusations of party members clandestinely working with NRM to see that the MPs are free. 

Genesis
The State claims that Ssegirinya and Ssewanyana were involved in the 2021 mysterious killings of about 26 people that took place in the greater Masaka area. Most of the victims were elderly members of the community with their killers using a similar weapon: a deadly machete. 

The release of the MPs has brought relief to Opposition leaders who had come under intense pressure for allegedly not doing enough to see that their colleagues are released, and also the MPs’ families were understandably in jubilation mood.

However, upon conviction on these charges, one could be sentenced to death. The charges still stand with MPs, as one of the conditions of getting bail, required to report every month at the High Court’s International Crime Division (ICD) in Kampala. With charges that serious, the public has for months expected a serious legal showdown in which the State presents witnesses.

Chief Justice Alfonse Owiny-Dollo took the unusual step of warning the DPP during the new law year function that trial judges won’t entertain games.  

“I want to announce that this very quarter, the trial will begin. They will be subjected to trial. Let me say this to the State: You are the ones that brought these accused persons to court and made allegations against them.

ALSO READ: The paradox of trying civilians in military courts

The law says they are innocent until you have proved the matter in court,” Justice Owiny-Dollo, who came under pressure to see that an expeditious trial happens, said.  

The Chief Justice, who rarely comments on trials happening in lower courts, added: “When the trial begins, and it will begin soon, there will be no games. The State has brought them and it has the capacity to bring all the witnesses to court. I will ask the trial judge not to entertain any nonsense in this trial.”  

Legal gymnastics ahead
Those who are expecting a serious trial should hold their breath as the case isn’t taking shape as it should be.
The first indication is that Ssewanyana and Ssegirinya were committed to the High Court to stand trial in March last by Masaka Grade One Magistrate Christine Nantege after the DPP claimed that she was done with investigations. 

It’s coming to a year since they were committed for trial, but the State is yet to disclose, in accordance with court rules, the evidence they have to the defence lawyers. 

“The DPP has never served us with any kind of evidence yet they claimed last year that investigations were done,” Samuel Muyizzi, one of the defence lawyers, says. If the case crumbles, it wouldn’t be the first time the DPP fails to prosecute a case in which Opposition politicians are accused of serious offenses.

How Besigye treason case collapsed
In 2016, just after the general elections, Dr Kizza Besigye, then the main Opposition candidate, was charged with treason. 

The State claimed that between February 20, 2016, and May 11, 2016, at various places in Wakiso and Kampala districts, Besigye committed what amounted to treason when he allegedly demanded an independent international audit of the presidential election results before a new president is inaugurated.

Another action that the State claimed that Besigye, a four-time presidential candidate, committed and amounted to treason was that between February 20, 2016, and May 11, 2016, at various places in Kampala and Wakiso, he unlawfully declared himself the winner of the February 18, 2016, presidential election.  

MUST READ: Allowing ‘kids’ on the Bench is messing up the Temple of Justice

Just like in the MPs’ case, the State wasn’t sure of where it wanted to try Besigye from. Though he had been accused of committing treason within the Kampala metropolitan precincts, Besigye had been taken to the far-flung Moroto District, in Karamoja sub-region.  

Yet within days, the State was asking court to transfer the case file from the Moroto Magistrate’s Court to Kampala, with the prosecutors claiming then that Besigye’s continued stay in the upcountry prison presented a security threat in the area.

When Besigye was brought to Nakawa Chief Magistrate’s Court, the prosecutors had different ideas:  They wanted him to be taken to the Grade One Court found just adjacent to Luzira maximum prison.    

After a number of glitches, the case didn’t take off at the Nakawa Magistrate’s Court, prompting Besigye to ask for bail at the High Court, which was granted to him in July 2016. 

The granting of bail came as a relief to the prosecutors as this simply marked the end of the case without openly admitting it.  

In 2018, Besigye dragged the State to the Constitutional Court challenging section 23(2)(A) of the Penal Code under which he was charged with treason. 

According to Besigye, the said section is inconsistent with Article 29 (1)(B and (D) as well as 38 (2), 43, and 44 of the Constitution. 

“The offense,” Besigye said in his affidavit in support of the petition in which the Attorney General, who is the government’s chief legal adviser was the respondent, “with which I’m charged is couched in a manner so vague as to make it impossible for any person to understand what kinds of acts or omissions would constitute it.”

In attacking the procrastination to prosecute, Besigye in his affidavit recounted how he was first granted bail having been transferred from Moroto District to Kampala, by the High Court on July 12, 2016.  
That since that date, to the best of his recollection, Besigye said he had appeared before the Nakawa Chief Magistrate’s Court on several occasions, including, June 29, 2016, July 13, 2016, and August 12, 2016. 

He said on September 13, 2016, he never appeared in person but rather through his surety, and then on October 12, 2016, November 16, 2016, January 25, 2017, March 20, 2017, and April 28, 2017, he appeared personally for mention of the case.  

ALSO READ: Why it has become almost impossible to win a case against a judge in Uganda

On each occasion, he said State Attorneys such as Deborah Etwau or Anne Ntimba consistently informed the presiding magistrate that inquiries were still ongoing, upon which the DPP was granted more time to complete inquires by the court. 

Consequently, Besigye asserted that the charge against him was politically motivated and amounted, according to him, to political persecution. This persecution by the DPP, he said, was intended to either keep him busy in court, bankrupt him so that he cannot get effective legal representation, or ensure that he cannot enjoy freedom as he continuously lives under the cloud of a treason case. 

“I know,” Besigye said, “that the political persecution I suffer is based simply on my unwavering commitment to bring to the fore and rally Ugandans against the excesses of the Executive arm of the government of Uganda and ensure that all citizens enjoy true, complete and meaningful democracy.”   

In 2021, it emerged that the DPP had secretly withdrawn the treason charges against Besigye.

“This is to inform the court that the Director of Public Prosecutions has decided to discontinue proceedings against Rtd Col Kizza Besigye Kifefe charged with treason,” the withdrawal form signed off by then DPP, Mike Chibita, read in part.   

ALSO READ: Museveni praises Dollo for steering effective Judiciary 

For Ssegirinya and Ssewanyana, the DPP tagged them to the murder of Francis Mugerwa Kizza and Sulieman Kakooza.  

The way the DPP has framed the case hasn’t bothered the defence side.  
“First, they are yet to disclose any kind of evidence they have against our clients. But from the summary of the evidence we have, they seem to heavily rely on co- accused’s confession. And there is nothing there to prove grave charges such as terrorism,” Caleb Alaka, another defence lawyer, says.  
Ssegirinya and Ssewanyana wouldn’t be the first MP to face murder charges.

Other murder cases examined
Former Arua Municipality MP Hussein Akbar Godi is currently serving 25 years in prison for murdering his wife Rehema Caesar Nasur. 

Godi, who belonged to the Opposition Forum for Democratic Change (FDC) party, had insisted on the line that the charges were politically motivated, but all the courts – High Court, Court of Appeal, and the Supreme Court – agreed with prosecutors that the youthful MP murdered his wife.  
“He [the trial judge] considered the evidence on the soil analysis, the DNA, some damage on the appellant’s [Godi] car... The judge considered the question of how soil from the scene of the murder and the appellant’s shoes removed from his residence nearly a week after the murder matched,” the Supreme Court put the final nail in Godi’s coffin. 

In 2005, before Godi, two FDC MPs Reagan Okumu (then Aswa MP), and Michael Ocula (then Kilak MP) were charged with the murder of Alfred Bongomin. 

Bongomin, the LC 3 chairperson for Pabbo Sub-county in Gulu District and a Movement stalwart, was gunned down in Gulu Town on February 12, 2002.

But in his January 9, 2006, judgment, the now-retired High Court judge John Bosco Katutsi had no kind words for the State. 

He accused the State of engaging in “a crude” and “amateur” attempt to accuse Okumu and Ocula of murder. Justice Katutsi blamed the prosecution, which was led by Simon Peter Byabakama, who is now the Electoral Commission chairperson, for presenting witnesses with “shady characters “and who were “self-confessed criminals”. 

According to the judge, although it was apparent that Bongomin was murdered, Byabakama’s team had failed to prove that the MPs were in any way involved in the killing.