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Museveni’s constitution amendment strikes rage

By Achola Rosario

 

Will the Ugandan Judiciary remain independent if the proposed constitutional amendment that denies bail to treason suspects, economic saboteurs, terrorists and defilers is passed into law?

“First of all you must remove presumption of innocence, before you remove the right to bail. So they will have to amend very many parts of the Constitution to make sure that you are presumed to be guilty until you are proven innocent. I do not know of any country where there is no presumption of innocence in criminal cases. The purpose of a trial is to prove your guilt,” Norbert Mao, the Democratic Party president, told The Independent in interview about by President Museveni’s proposed constitution amendment.


The new President of the Uganda Law Society, James Sebugenyi, says denying suspects bail “would have disastrous effects on government and the rule of law as the Police would become reluctant to investigate and Prisons would be congested with suspects.”

Government would be faced with serious compensation and damages upon acquittal of the suspects or withdrawal of untenable charges.”

The proposed amendment is likely to be passed with ease given that the NRM has an overwhelming majority in parliament, but it will face a serious legal challenge.

Senior lawyer and former Uganda Law Society president Andrew Kasirye says: “I do not think lawyers will allow it to happen. The Constitution is not prescriptive to specific situations, it is a broad national framework that should be read as a whole.”

The proposed constitution amendment has been  widely interpreted as part of a broader scheme by the government to erode the independence of the Judiciary given the events that have happened in the last two months. On April 22 FDC leader Dr Kizza Besigye was arrested and charged with holding an unlawful assembly for Walking-to-Work. The Nabweru Chief Magistrate Justin Atukwasa remanded him in Nakasongola Prison, 100km away in another district, after she declined to hear his bail application citing “many other cases to handle.” On April 27 when he was expected to reappear in Nabweru court, his case was shifted to Nakasongola in another court of equal jurisdiction. The same magistrate Atukwasa left her work station to specifically preside over Besigye’s bail application in Nakasongola. Besigye’s supporters and lawyers waited for him at Nabweru court in vain. The lawyers refused to travel to Nakasongola in protest to the magistrate’s conduct. The magistrate’s decision appeared strange in law and logic.

Mao and several other opposition officials were also brutally arrested for holding the Walk-to-Work protests in various parts of the city. Although some were released on bail, others including Mao were remanded to Luzira and later Nakasongola prison.

Lawyers under the Uganda Law Society went on a countrywide strike and submitted a petition to the Chief Justice Benjamin Odoki protesting the abuse of the rule of law and the brutality with which security forces had handled the protesters. The lawyers contended that the state was using the courts of law to persecute people.

Kasirye says he was disappointed by Odoki’s reaction to the lawyers’ petition. “The Chief Justice was very indifferent. In the 25 years I have been a lawyer, I have never seen such arrogance. The lawyers booed and jeered as Odoki spoke because of his arrogance, justifying the actions of the State and security operatives. He did not sound objective. I do not expect him to give us any feedback. He is not a strong character like his predecessors. He cannot stand firm and tell the executive when they are wrong. He has to take responsibility for the breakdown of the rule of law,” says Kasirye.

Later President Museveni decried the release of suspected rioters on bail. He followed up his remarks with a statement on May 10 that he would ask parliament to change the constitution in order to remove the provision for bail for people accused of rioting.

Legal minds say Museveni’s action offends Article 128 of the constitution which states: “No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.”

Kasirye says Museveni has already demonstrated his interference with the independence of the judiciary although he insisted the Judiciary is still largely independent despite the Chief Justice’s seemingly soft spot for the Executive. He says if the Bill is passed into law, lawyers will challenge it in court. By that amendment, Kasirye says Museveni wants to take away the courts’ discretion to give or deny bail so that there is a blanket law which will penalise anyone who openly opposes him.

The Uganda Peoples Congress president Dr Olara Otunnu says: “One can’t take Museveni too seriously about some of the preposterous statements he makes. I know that he has been talking about amending the constitution in various directions. What matters to us really is whether any amendments that are brought before Parliament conform to constitutional rights and basic rights. What we are concerned about is preserving the rule of law, meaning that everybody including the President acts under the law. It also means using the law to entrench and promote those rights; not undermine them. If you undermine them it gives you rule by law; not rule of law.”

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