By John Njoroge
Opposition Forum for Democratic Change (FDC) party’s decision to sue members of the Joint Anti-Terrorism Taskforce (JATT) and security minister John Patrick Amama Mbabazi for the torture and inhuman treatment of among others, Francis Atugonza; its secretary for industry and trade and mayor of Hoima town, has sparked widespread interest.
Dr Kizza Besigye’s (FDC president) announcement was hailed by human rights activists attending the East and Horn of Africa Human Rights Defenders Project conference at Speke Resort Munyonyo.
The human rights defenders from other African countries at the conference described FDCs move as a positive step in the right direction in championing the rights of Ugandans. MPs, especially from the opposition, are also showing support for FDCs action.
This new approach by FDC is opposed to the traditional method of suing the Attorney General (AG). FDC notes that suing the AG has only resulted in financial compensation to victims of torture. The individual perpetrators of these crimes never get to personally answer for their crimes. The consequences of their criminal actions are passed on to the state, which in turn, places the burden to the taxpayers in form of the billions of shillings government pays off as compensation to victims. Regrettably a majority of those awarded compensation wait for painfully many years to receive it.
There are however mixed reactions among members of the legal fraternity.
Bob Kasango, a lawyer with Hall & Partners, says FDC should also sue the Attorney General.
â€œTo have leverage, FDC should not ignore suing the AG. To succeed they have to prove that the individuals committed these acts in the course of their duty,â€ he says.
Kasango insists that JATT cannot be sued since it is not a constitutionally instituted body.
â€œWho is JATT? How was it formed? What is its mandate? What does the constitution say about it? This is an administrative structure whose members are from various security entities. People are picked from police, CID, UPDF, etc and work under this structure. It is not a body corporate like police that you can sue. And in what capacity will you sue Mbabazi; as security minister, as security coordinator? In the case of Atugonza, FDC needs to prove that there was a direct threat from Mbabazi to Atugonza, â€ he says.Â
FDC says it can prove that Atugonza was being threatened by Mbabazi. During a press conference at the party headquarters in Najjanankumbi, Kampala, Besigye accused Mbabazi of threatening Atugonza while on a patriotism tour of Hoima district last month.
Atugonza was arrested after a phone call from a one Hajj Twaha Lukwanzi inviting him to pick money from Kampala. His whereabouts were unknown until he was produced before court and charged with obtaining money by false pretence.Â
Another lawyer, who declined to be named, agrees with Kasango that successfully suing Mbabazi will not be easy.
â€œTorture may be happening while he is security minister, but you have to link him directly to these cases in order to have him prosecuted. You need to prove that at one time Mbabazi participated or gave instructions to torture somebody. Without this, Mbabazi cannot be held accountable.â€
Daudi Mpanga of A.F Mpanga Advocates says FDC is taking a very bold step.
â€œIf there are known torturers like those mentioned in the Human Rights Watch report, there is no reason why they should not be brought to book. It is the responsibility of government to protect its citizens. FDC will need to make a good argument in this case.â€
Quoting Article 50 of the constitution, Mpanga feels that FDC has a chance although it is likely to be difficult
â€œAny person, who claims that a fundamental or other right or freedom guaranteed under the Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation. Any person or organisation may bring an action against the violation of another personâ€™s or groupâ€™s human rights. With this in mind, FDC will be left with the burden to prove its case.â€
Yet another lawyer says it is unfortunate that FDC woken up from â€˜slumberâ€™ only when one of its key members was brutally tortured.
â€œPolitically, FDC should have been exposing this a long time ago. Being an opposition party whose members have been heavily persecuted, it should be leading campaigns against torture and the impunity with which JATT and CMI operatives behave. The pictures of such people should be published so that Ugandans know the beasts.â€
â€œServing someone court summons, putting them through the stress of public shame; always in the papers and on TV, the hustle of looking for legal representation and being in court all the time, being on remand in prison or having to report to police since one is on bond as investigations continue may cause other torturers to think twice before laying their hands on anybody.â€
He says the burden of proof is overwhelming; responsibility for torture is difficult to apportion. Evidence collection will prove difficult for FDC. Â State machinery is likely to be employed to frustrate investigations by either withholding evidence or by simply refusing to cooperate. They with have to provide the prosecution with evidence to prove that those they will name have actually been involved in torture.
In the past, victims like Atugonza, after being tortured have been accused of various crimes. They have been forced to prove their innocence through labourious, costly, and time consuming legal processes. In the end, the primary issue of torture has often been abandoned by the victims as they concentrate on fighting to fend off a possible jail term.Â
If the FDC case against JATT and Mbabazi succeeds, it will open a new way out for torture victims.