Bail: Judiciary pushes back against Museveni

A photo montage of Chief Justice Alfonse Owiny-Dollo and President  Museveni. PHOTO/FILE

What you need to know:

  • The law. Article 23 (6)a of the Constitution provides “where a person is arrested in respect of a criminal offence, the person is entitled to apply to the court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable”.

The judiciary yesterday pushed back against a proposal by President Museveni to deny bail to capital offenders and or expedite determination of murder cases, arguing that doing so would be treating a symptom, but not tackling the root cause, of huge case backlog.

In a telephone interview with this newspaper, Chief Justice Alfonse Owiny-Dollo said: “Murder, terrorism, aggravated robbery, treason, aggravated defilement, and aggravated rape are all serious offences and their hearing should be prioritised rather than saying we are prioritising this and that…”

“Otherwise, selecting which cases should be prioritised is treating symptoms because what happens tomorrow when treason [and] terrorism cases shoot up, will you abandon murder and run after those?” he asked.

According to Justice Owiny-Dollo, Mr Museveni has not written to formally notify him that the judiciary should prioritise and expedite the hearing and determination of murder cases, except for excerpts of the conversation he heard on television.

“Once the President decides to communicate to the Chief Justice, he officially writes to him through the known channels or asks someone to call me which has not been done. But I will wait on him to communicate to me officially,” he said.

In a televised address last Friday about matters of national importance, President Museveni proposed to the Judiciary to prioritise the hearing of murder cases given resource limitations.

Mr Museveni reasoned that murder involves taking away someone’s life --- an irreversible act unlike other crimes where both the perpetrator and victim can have a second chance at life.

“We have shown that you can do your duties even with little resources. Even in the case of justice, you can prioritise. These cases are not the same, murder is not like other cases. Why? Because it’s irreversible; somebody has been killed, you can’t bring him or her back to life,” he said last Friday.

The President added: “So, this argument of delaying trials cannot apply to murder. The Judiciary can prioritise murder and murder cases are not many. If you take the whole country, they are not the majority cases with backlog. So, the question of murder can be addressed despite having little resources.”

According to the Police’s Crime and Traffic Safety report of 2020, there were 4,460 cases of homicide registered with law enforcement in the year of lockdown, down from 4,718 the previous year.

In yesterday’s interview, Justice Owiny-Dollo said the only remedy to the ongoing sticky debate about whether or not to grant bail to suspected capital offenders, is to recruit more judges, strengthen the investigations arms of government such as the police and the Directorate of Public Prosecution in order to ensure speedy trial as mandated by the Constitution.

President Museveni in back-to-back public engagement within a fortnight has, in a more forceful renewal of his decade-old demand, argued spiritedly that that persons accused of committing capital offences should not be granted bail until after 180 days on remand.

At the Benedicto Kiwanuka memorial lecture, the President and the Chief Justice disagreed over the matter, with Mr Museveni reasoning that granting bail to a capital offender is provocation and basis for growing mob justice incident, a claim he did not qualify with statistics.

The head of State vowed to prescribe a political medicine to cure the problem, but an NRM Parliamentary Caucus that he summoned last week failed to generate a consensus after vocal members opposed denial of bail to capital offenders, and a second NRM Caucus meeting is expected in a week’s time to strike a common position.  

A couple of days later, last Friday, Mr Museveni brought his case to the court of public opinion by making it a cornerstone of his nationally televised address.

The President’s bail denial campaign has run into the wall before and again this time, with legal scholars and practitioners as well as the judiciary and some Members of Parliament subscribing to the ruling National Resistance Movement party that he chairs, telling him that the question of bail is a settled matter under Uganda’s laws that presume innocence of an accused person until proven guilty.

Justice Owiny-Dollo yesterday said “why fight for bail if there is a speedy trial? You can only ask for bail in exceptional circumstances like grave ill health and old age. So, the debate about bail is because we are not focusing on the Constitution that demands for a quick trial”.

He added: “There is need to strengthen the investigating bodies (DPP and police) so that when a person is arrested, they should be arraigned before court within 48 hours as the Constitution demands, be committed to the High Court and tried quickly.”