CONTENTS | ANB-BIA HOMEPAGE | WEEKLY NEWS
|
Uganda |
JUSTICE
Uganda’s judges have warned that persistent attacks by President Yoweri
Museveni,
accusing them of being partisan and biased against the
National
Resistance Movement (NRM) government,
will erode the Judiciary’s independence
The Bench’s warning was contained in a memorandum addressed to President Museveni last August, following his persistent accusations against judges and magistrates, of being unpatriotic, partisan, biased against the NRM government, corrupt and outright incompetent.
The warning had been a long time coming and was the outcome of a whole series of events. In April 2001, President Museveni had praised the Supreme Court for its 3-2 ruling against the petition filed by former presidential candidate Col. (retired) Dr. Kizza Besigye (now exiled). challenging Museveni’s March 2001 election as President. In his petition against President Museveni’s election, Col. Dr. Besigye cited irregularities including violence by security agencies, intimidation of voters, ballot stuffing, bribery and inefficiency of the Electoral Commission. Col. Dr. Besigye said that he did not agree with the Supreme Court judgement, but he would respect it. Museveni, on the other hand, said he was angered by the two dissenting justices, describing them as unpatriotic, partisan and biased. He threatened to set up an inquiry (to be conducted by foreign judges) into the Judiciary for corruption and misconduct.
On 11 July 2002, President Museveni told journalists that supporters of the no-party Movement political system have lost election petitions, because the courts are full of pro-multiparty judges. He also said criminals would be tried by the military court because the civilian courts release them.
In response, the judges said, «The Constitutional Court should not be expected to always interpret the provisions of the Constitution in accordance with the opinion of the government, however passionately the latter may wish its opinion to be upheld. Nor should any court be expected to uphold a flawed election, merely because the declared winner was the government candidate, or conversely, to annul a valid election, merely because the government supporter is the losing candidate who has petitioned the court.»
They said the government should appeal if it does not agree with a court’s decision, and when that is exhausted, should accept and respect the final verdict.
Judgements in political cases
Judgements in political cases have been received with mixed reactions from politicians. On 17 December 2002, Defence Minister Amama Mbabazi attacked the Court of Appeal for upholding a High Court decision nullifying his June 2001 election as MP for Kinkizi West in Kanungu district. The Court found merit in the accusations of irregularities in the election process — intimidation of voters, ballot stuffing, bribery and violence — as cited in the petition by his opponent, James Musinguzi. Mbabazi said he was dissatisfied with the ruling and asked the court to review its ruling. He said there is «an impending crisis of confidence in the courts». (Mbabazi is seen in some circles as one of the likely successors of President Museveni who, according to the Constitution, is expected to step down in 2006).
Accusations of corruption
In July 2002, the President said courts would be made irrelevant because by releasing criminals they were responsible for the increased rate of violent crimes in Uganda. The judges responded that the President’s accusations are too general — he doesn’t provide particular cases or proof. They demanded that «the upright judges and magistrates, who discharge their duties with devotion and diligence, be spared the indignity and embarrassment of being so persistently accused of wrongs they are not guilty of.»
The judges strongly advised the President against setting up a general inquiry conducted by foreign judges into corruption and misconduct in the Judiciary. They said judges and magistrates are not above the law and can be lawfully and legitimately disciplined (including removal from office) for failing to live up to what is expected of them in the discharge of a judicial office.
On 5 October 2002, Chief Justice Benjamin Odoki told an East African Magistrates and Judges Association conference in Uganda, that corruption does exist in the Judiciary, but it is not so widespread as portrayed. Judicial officers have solicited or have been offered and taken bribes. Some received the bribes directly or through intermediaries. On the other hand, some malicious litigants alleged that they bribed a judge or magistrate, while other disgruntled litigants claimed they had lost cases because the other party bribed the judge.
Military courts
The judges have also advised the President against trying to transfer the courts’ jurisdiction to military courts. They suggested that there is need for more investment in the criminal justice sector to ensure better quality investigations and prosecutions, and faster disposal of cases.
However, hundreds of suspected armed robbers and murderers arrested in a joint operation involving the Uganda Police, the Internal Security Organisation (ISO) and other security agencies are being tried by a military Court Martial. The operation, codenamed «Operation Wembley», was launched on 25 June 2002 to fight the escalating violent crime-wave in Uganda. Over fifty suspected criminals were killed in the controversial operation. Lawyers and human rights activists said it was illegal and unconstitutional to launch a «kill-on-sight» military-style operation.
Judges have emphasized that impartiality is the essence of the administration of justice, and that judicial officers are duty-bound to resolve disputes on the basis of the evidence produced before them and the applicable law, treating all parties equally. They said persons arrested are taken to court for trial, not for mere judicial endorsement of the decisions of the arresting officers.
«Innocent until proved guilty»
Judges said the most frequent criticisms are in respect of court decisions to release persons accused of crime, either on bail pending trial, or upon acquittal or dismissal of charges. «It is a fundamental principle of our criminal justice system, that a person accused of a criminal offence must be presumed innocent until it is proved, or the accused person pleads, that he or she is guilty». The judges said the power to determine whether an accused is guilty of the offence charged, either on the basis of the accused person’s plea in court, or on the strength of evidence produced at his or her trial by a court, is vested in the Judiciary.
Release on bail is enshrined in the Constitution as an accused person’s right, subject to conditions. The power to determine if an accused person satisfies the conditions for release on bail, is vested in the Judiciary.
The judges maintain the Ugandan Judiciary’s independence has for decades been its strength and the envy of others in the region. «This very strength has, despite serious obstacles in the past, enabled the Judiciary to serve the cause of human rights and the rule of law.»
One thing is certain — to sustain democratic governance, the rule of law and the observance of human rights, Uganda must have an independent, fearless and respected Judiciary.