One of the highlights of this year’s Benedicto Kiwanuka Memorial Lecture, held on September 19, was the spirited defence of the Judiciary by Chief Justice Alphonse Owiny-Dollo. Justice Owiny-Dollo spent most of the 16 minutes of his response to the keynote address delivered by Mr Francis Gimara, a former president of the Uganda Law Society (ULS), trying to allay fears that the Judiciary under him has been found lacking in courage in the face of pressure from the Executive.
‘One could have talked of courage if it were true that out there is someone, for instance, the Executive, the Head of State, the Minister of Justice, the Attorney General was always breathing on my neck from behind and say, ‘you must write judgment in this case to the right nor to the left.’ Then maybe one would have said I had the courage to defy the President, to defy the Attorney General, to defy the Minister of Justice,’ he argued. Mr Gimara, in a presentation titled, ‘Upholding justice with courage: Advancing the Benedicto Kiwanuka legacy,’ pointed to what he described as ‘a growing recent concern that the courts are losing’ their bravery.
What was the crux of the matter?
Under Justice Owiny-Dollo, Mr Gimara seemed to say, the Judiciary has lost the kind of bravery and judicial independence that was exhibited by the late Benedicto Kiwanuka in September 1972 when he issued a writ of habeas corpus and ordered the release of Daniel Stewart. The Englishman had been found in possession of printed materials that were critical of the Amin regime’s human rights records. Kiwanuka famously ruled thus: ‘The military forces of this country have no powers of arrest of any kind whatsoever.’
It is believed that this act of courage in the face of Amin’s tyrannical rule triggered his abduction and subsequent murder. Kiwanuka was abducted from the High Court premises on September 21, 1972. His remains were never recovered.
Bail difficulties
The latest Benedicto Kiwanuka memorial came at a time when bail has become increasingly hard to come by, with politicians like Dr Kizza Besigye and a number of National Unity Platform (NUP) members caught in the crosshairs. Mr Dan Wandera Ogalo, a constitutional lawyer who has practised law for more than four decades, says this is the first time in the history of the Judiciary that the courts have made it so difficult for suspects to access bail.
‘The practice used to be that you would make an application and the judge would make a ruling there and then. They never used to adjourn for two days to study the application. So this is a new development,’ he said. Mr Asuman Basalirwa, a lawyer who is also the president of the Opposition Justice Forum (Jeema) party, says some of the reasons being advanced as grounds for denial of bail are quite laughable.
‘Bail is in some cases being denied on speculation that you will interfere with witnesses. How can you say that one will interfere with witnesses that they do not know? The suspects do not have influence in society. How then possible is it that they will interfere with witnesses?’ he asks.
What exactly has changed?
Mr Ogalo says the courts seem to have adopted a fundamentally different approach. Previously, he says, the biggest consideration was whether the suspect was a flight risk. He hastens to add that even in such cases, the inclination was to make the conditions stringent, not to deny bail. Mr Basalirwa weighs in, noting that some of the conditions that the courts set for bail are, in some cases, not commensurate with the crime.
‘Look at, for example the financial aspect of bail these days. It’s so prohibitive that even if you are granted bail, you may end up still detained because you cannot afford the money. If somebody is being charged with the embezzlement of Shs5 billion, it is understandable when you make the requirement a little bit high, but why ask for Shs10 million for somebody who has been arrested for wearing a red beret?’ Mr Basalirwa wonders.
In October 2023, the Court of Appeal nullified the criminal trial of Mr Paul Wanyoto and Mr Patrick Mugisha because of blatant violations and infringements on their non-derogable rights and freedoms from torture, cruel, and inhumane and other human rights and freedoms guaranteed under Articles 23, 24, 42 and 44 of the Constitution. The panel of judges led by Justice Fredrick Egonda Ntende set a precedence that the court has to terminate proceedings once suspects prove that they have been the victims of torture. This precedence, however, seems to have been ignored by the courts so far.
The Judiciary’s new approach that Mr Ogalo talks about comes at a time when the institution has for several years now been under pressure from President Museveni to stop granting bail to persons accused of capital offences. Those calls were precipitated by the December 2009 disappearance of the former Mayuge District Chairman, Mr Baker Ikoba Tigawalana, a day after the Court of Appeal overturned a High Court judgment that had absolved him of the murder in January 2003 of a political opponent, Fred Nnume Musiitwa.
During the 16th annual judges conference in 2014, Mr Museveni gave the Judiciary a tongue lashing for claiming that bail is a ‘right’ yet the Constitution says it ‘may be granted.’ On June 14, 2018, Mr Museveni directed the Judiciary and the police to stop releasing murder suspects on bail and bond, respectively, saying issuance of the same to murders suspects was ‘unacceptable’.
‘There are two things I am not going to accept anymore; police bond and bail. I don’t want to hear about them again. Somebody suspected of killing our people and you give them police bond? No way, this is not acceptable,’ Mr Museveni said.
How did the Judiciary respond?
The Judiciary under former Chief Justice Bart Katureebe pushed back. On June 15, 2018, the institution issued a statement indicating that it would not bow to the President’s whims. ‘It’s very simple, the issue of bail is governed by the Constitution and the law. Until the law is amended, bail will be granted or denied in accordance with the Constitution and the law,’ Justice Katureebe said in the press statement, adding that courts presume that all the accused persons, including those facing murder charges, are innocent until proven guilty.
Mr Museveni’s pitch against the issuance of bail took a new dimension following the January 2021 killing of Arua Municipality MP Ibrahim Abiriga, near his home in Matugga. Abiriga and his brother, Saidi Buga, were shot by two people who were riding on a motorcycle. ‘I have been very soft on these institutions (Judiciary and the police) who are always stepping on us,’ he said.
If the Judiciary’s response in June of 2018 was a display of bravery akin to what Benedicto Kiwanuka mustered in September 1972, the status quo in here and now couldn’t have been more different. Well, at least according to Mr Gimara. In his keynote address, he stated that there are serious questions as to whether the country and justice systems are living up to the late Kiwanuka’s legacy of justice and courage as the right to life, the right to liberty, the right to a fair hearing, the right to access to information, freedom from torture and conscientious freedoms, including freedom of expression ‘continue to be tested by political manoeuvrings and recent events.’
He pointed out that the lack of spine ‘has been especially evident’ particularly ‘regarding the granting of bail to individuals tried before military courts.’
What is the Judiciary’s defence? Mr James Ereemye Jumire Mawanda, its chief publicist, says other considerations also come into play. Justice, he opined, is not only for the accused. ‘We have,’ he added, ‘victims of crime, we have society and communities. Our judicial officers have taken a judicial oath to administer justice to all and the ‘all’ means and includes the accused, the victims, the communities and the society as a whole. That is why a judicial officer will grant or reject the (bail) application.’
Elsewhere, Justice Owiny-Dollo accuses sections of the legal fraternity of misreading the law on bail, insisting that it is not a right. ‘I get amazed that people still make statements as if there’s no jurisprudence on issues of constitutional right to bail. The Constitution says an accused person who seeks bail has the right to apply for bail. That’s the wording of Article 23. Then the Constitution gives the judicial officer before whom someone seeks to be admitted to bail the discretion to determine whether or not to admit such a person to bail. That cannot be called a right,’ he argued.
He added that the same standard applies to the issue of mandatory bail where an accused person has spent the statutory period on remand. Mr Basalirwa concurs with him, but hastens to add that the courts are not approaching the bail applications judiciously. Why would the courts not handle them judiciously? It is difficult to say why, but the biggest fear is that the Judiciary has finally bowed down to pressure from the Executive. That fear is perhaps best captured in one of Mr Gimara’s comments.
‘The concern raised is whether the courts are pandering to the Executive in this matter, and in many political cases,’ he said in his keynote address. While Justice Owiny-Dollo did not agree, Mr Ogalo and Mr Basalirwa are inclined to agree with Mr Gimara. ‘They (Judiciary) has not stood its ground. It is really just a caving in to the President’s continued fight against the grant of bail,’ Mr Basalirwa concludes.