Magistrates in the spotlight over bail in politically sensitive cases

In reaction to the runaway inflation of 2011, a group of political activists christened Activists for Change (A4C) declared protests they called walk- to-walk, but Dr Kizza Besigye had been arrested four times and charged at a magistrate’s court in Kasangati township with inciting violence.

The magistrate granted Dr Besigye bail on condition that he does not stage more protests. Besigye, in the aftermath of being freed, still pressed ahead with the protests.

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Eleven years later, Siena Owomugisha, a Grade One Magistrate at Buganda Road Court, reignited the debate when she ordered Dr Besigye, who was once again arrested for protesting against the runaway commodity prices, to pay Shs30 million to regain his freedom.

Dr Besigye through his lawyer Erias Lukwago was clear that he was not paying the amount because it could have a chilling effect on how activists are treated in future when they are applying for bail. 

“Buganda Road Court, where I’ve been charged with ‘inciting violence’, has just granted me cash bail of Shs30m! I consider this an extension of the injustices I’ve faced for long. I’ve asked my lawyers to appeal it as I endure remand. All Ugandans should stand firm against injustices,” Dr Besigye said.

Dr Besigye’s appeal was granted when High Court judge Michael Elubu overturned Owomugisha’s ruling by slashing the bail fees from Shs30 million to Shs3 million

“The trial magistrate correctly stated that bail terms imposed should be a safeguard that once released on bail, the accused will return for his trial. That is as it should be. However, taking all circumstances of the case into consideration, it is my considered opinion that the learned trial magistrate exercised her discretion with a material irregularity when she set the bail condition at Shs30 million. This condition was manifestly harsh and excessive. It, therefore, occasioned a miscarriage of justice,” Justice Elubu said.

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Though Sarah Langa Sui, the Judiciary’s Chief Registrar whose role includes overseeing magistrates, defended Owomugisha saying Uganda’s justice system gives one a right to appeal up to the Supreme Court, the highest court in the land, legal practitioners insist there has been a trend of magistrates bungling up politically sensitive cases.

“Politically charged cases bother magistrates and some would rather avoid them if they could. Some few magistrates still handle politically charged cases with admirable steel and mettle but buckle too easily under the pressure of external political manipulation conveyed through phone calls from above, or instructions directly conveyed to them physically by real or perceived State agents,” says Mr Eron Kiiza, a lawyer who has represented several Opposition activists including Kakwenza Rukirabashaija, a novelist who has since fled to exile said.

Cases of magistrates allegedly mishandling cases has been made with respect to Kakwenza who was allegedly tortured by State operatives before he was charged with using social media to disturb the peace of President Museveni and his son, Lt Gen Muhoozi Kainerugaba, between December 26 and 28, 2021. 

Mr Douglas Singiza, then Buganda Road Chief Magistrate, who has since been promoted to High Court judge, granted Kakwenza bail but he later rejected the novelist’s prayer to have his passport returned so he can fly out of the country for treatment and pick an award from Germany.

Singiza, who was part of the Justice Catherine Bamugemereire Commission that investigated land controversies in the country, advised Kakwenza to seek treatment within the country’s available health centres and hospitals since he has no serious illness and that the award he had won could be presented to him online.

Need to be rational

Prodded on the performance of judicial officers, Justice Benjamin Kabiito, the chairperson of the Judicial Service Commission whose role includes dealing with complaints brought against judicial officers, said there is a need for judicial officers to be rational.

“The way judicial officers determine cases is laid out, especially bail. But after all those factors are considered the magistrate must use common sense when making decisions,” Justice Kabiito said.

“If a person is sick, why do you deny his or her request to sick treatment yet the charges he or she is facing aren’t of grave nature? You just have to use common sense and a judicial officer should be brave when making decisions. If you are always fearing then you go home and leave the Judiciary.” 

Kakwenza, who later on beat security surveillance and fled to exile in Germany, has since through his lawyers asked the Judicial Service Commission to investigate Singiza who he accuses of a raft of things, including setting severe bail conditions such as stopping him from talking about his torture.

“His [Singiza] actions were against the Uganda Code of Judicial Conduct which  he must be subservient to as he dispenses justice,” Kakwenza wrote in his petition dated May 24.

Singiza isn’t the first magistrate to be promoted after being accused of mishandling a politically sensitive case.

Justice Philip Odoki is now one of the five judges manning High Court ‘s Civil Division, but in 2011 he was a Chief Magistrate in Mengo where he was at the centre of an election petition controversy that left him in a bad light.

Mr Moses Kasibante, who was an Independent candidate but backed by the Opposition-leaning Ssuubi pressure group, had been declared winner of Rubaga North constituency by the Electoral Commission (EC), but Singh Marwaha Katongole of the ruling National Resistance Movement (NRM) who had come second, decided to take the battle to Odoki’s court where he sought a recount.

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Before the recount could take place, the High Court following a petition filed by Kasibante issued an order stopping the process, but Odoki defied and pushed through the process in which Singh was controversially declared winner. When he was annulling Singh’s victory in 2012, Justice Musoke Kibuuka had no kind words for Odoki.

“Whereas section 55(1) of the PEA [Parliamentary Elections Act] vests a Chief Magistrate’s Court with jurisdiction to conduct a vote recount, the order that was sought in Miscellaneous Application No.29 of 2011 was an order requiring the second respondent [EC] to conduct a recount of all the votes cast during the parliamentary elections in Rubaga North constituency,” Justice Kibuuka ruled.

“It is a fact that the petitioner was not a party to this application. It is on record that the learned counsel who represented the second respondent Mr [Eric] Sabiiti, told the Chief Magistrate’s Court at the hearing of the application that the application was acceptable to the second respondent. The learned chief magistrate, thus, misdirected himself, fatally, by granting that order in the form in which the prayer had been made. He ordered the second respondent to recount all the votes cast during the parliamentary elections in Rubaga North Constituency.”

“By making the order he made on February 25, 2011, in miscellaneous application No.29 of 2011, the chief magistrate at Mengo abdicated his court’s jurisdiction. He purported to vest it in the second respondent [Electoral Commission [EC]; an act which tainted everything that was subsequently done based upon that illegal order which was itself a nullity.

FYI: Court issues warrant of arrest against Kakwenza sureties

About a decade after Justice Musoke’s ruling, Odoki is a High Court judge and the Judiciary admits that some magistrates make mistakes because they are not experienced.

“Yes, we have seen some scenarios where it’s obvious that that the magistrate had made a mistake but it’s because they are still learning and that’s why we are training them at the Judicial training institute,” Langa-Sui says. “We shall continue to train them such that they become better. You know judicial officers are like you writers, they become better with time.”

Judgement quashed

Another judicial officer who has had a controversy when handling a politically charged case is Gladys Kamasanyu.

When she was still a Grade One Magistrate, Kamasanyu sentenced Stella Nyanzi, a Museveni critic, to 18 months in prison for offending the President’s deceased mother, Esteri Kokundeka, in a Facebook post that went viral.

A few months later, High Court quashed her findings, accusing Kamasanyu – now Chief Magistrate at the Buganda Road Court – of overlooking Nyanzi’s rights.

“I have carefully perused the proceedings of the lower court and I note with disquiet that while it is clear that the learned trial magistrate was alive to all legal requirements that ought to be followed in a criminal trial, the lower trial court adopted such bizarre proceedings in total disregard with a series of disregard of legal procedural safeguards ignored which I find totally contrary to the standard required for the proper conduct of judicial powers as elucidated by Article 126 (1) of the Constitution of the Republic of Uganda which entails the exercise of judicial powers by the courts to be in conformity with the law,” Justice Henry Peter Adonyo ruled, setting Nyanzi, who has since fled to exile in Germany, free.

ALSO READ: Kakwenza and Nyanzi are a warning of woes yet to come

On the promotion of magistrates, Judiciary insists all these promotions are merited.

“We at the inspectorate look at the performance of judicial officers and we appraise the courts,” Justice Rubby Opio-Aweri, a Supreme Court judge who is the Judiciary’s Chief Inspector of Courts, explains. “We have found over time our magistrates have been improving. We still have some issues here and there, but still, we are improving.

Awkward bail terms

But magistrates are not alone when it comes to setting awkward bail terms such as telling activists not to partake in protests.

In 2016, when he granted bail to Dr Besigye who had been accused of treason, High Court judge Wilson Masalu Musene, who has since retired, asked the Opposition behemoth not to participate in protests.

“Finally, in the politics of this country, courts of law are neutral and have no sides. But since a case of treason has been preferred against the applicant [Besigye], the message to all concerned, including the applicant now before this court, is a message of tolerance and forgiveness; a message of reconciliation and hope; and a message of peaceful coexistence of all the people of Uganda,” the judge said.

He added that: “Uganda should be a free and safe society for all with emphasis on peaceful resolution of conflicts and observance of the rule of law. The applicant is, therefore, called upon to live peacefully and not to cause any violence as long as the case against him is still pending in court,” Justice Musene ruled, but Dr Besigye certainly rejected the court’s order, insisting he will continue with protests.

“The bail terms of politicians, such as some judicial officers warning accused persons not to do what they are charged with, by, for instance, telling peaceful demonstrators to keep peace or simply calling them rioters – a language or orders that speak to the bias or attitude of a magistrate towards activists,” Kiiza says.

The accusations 

“Politically charged cases bother magistrates and some would rather avoid them if they could. Some few magistrates still handle politically charged cases with admirable steel and mettle but buckle too easily under the pressure of external political manipulation conveyed through phone calls from above, or instructions directly conveyed to them physically by real or perceived State agents,” says Mr Eron Kiiza, a lawyer who has represented several Opposition activists.

“They will then collude with oppressive State machinery driven by military or police officers and ensure that citizens’ rights to due process are curtailed or frustrated with all sorts of excuses and tactics, including delaying or unnecessarily adjourning handling or ruling on bail applications and giving stringent bail terms.”