President Museveni yesterday renewed his decade-old push to scrap bail for suspected capital offenders, prompting constitutional experts to warn that the move could boomerang since it threatens the presumption of a suspect’s innocence until proven guilty.
In a terse address at the Benedicto Kiwanuka Memorial Lecture at High Court Building, where soldiers dragged out and later killed the former chief justice under Idi Amin 49 years ago, President Museveni also demanded that convicted murderers should automatically suffer death by hanging.
In the renewal of a matter that appears close to his heart for the umpteenth time since 2011, Mr Museveni said rendering bail at the discretion of judges was a “provocation” to the offended communities that he said are certain to retaliate against suspects freed pending trial.
“Really! Somebody has killed a person and you see him walking around, that is a provocation I am telling you. It’s a provocation, we can’t accept it,” Mr Museveni said at the 4th Kiwanuka Memorial Lecture in Kampala.
The President first raised the proposal to mandatorily deny bail for suspected offender, until after 180 days, in relation to the release a decade ago on bail of then Arua Municipality Member of Parliament Akbar Godi, who was facing murder charges.
Godi was eventually convicted of murdering his wife, Rehema, and is still serving his sentence at Kigo Prisons.
The President said the confusion in the law, which he said without providing statistics, has led to increased mob justice, arose from a deviation by the Justice Benjamin Odoki-led Constitutional Review Commission from the wishes of Ugandans.
Mr Museveni said during public hearings to gather nationwide views about proposed amendment of the 1995 Constitution, majority citizens rejected the idea of bail for capital offenders, but the Odoki Commission in its recommendations instead gave the power to grant or deny bail to judges.
“I have some issues with his Lordship Odoki [and] his Constitutional Review Commission. There is a way he suppressed our line, which is the line of the masses. Now I have got the record, when they were going around, the population was saying ‘there should be no bail for certain offences. I have checked on the minutes of the Constitutional Review Commission, the people did not want bail for certain offences,” he said in a rejoinder.
Earlier, Chief Justice Alfonse Owiny-Dollo, in apparent reference to recent media reports about President Museveni’s repeated demand to end bail for capital offenders, argued that the Constitution, which is the country’s supreme law, allows judges to grant or deny bail.
“We know that capital offences are a grave concern to the community,” he said, “So, in [the] exercise of judicial discretion, it’s the duty of the judicial officer to look at all these circumstances and make a decision whether to grant or not to grant.”
Weighing in on the debate, legal minds strongly disagreed with President Museveni, saying bail is a constitutional right and removing it will require amendment of other constitutional provisions on fundamental freedoms, in essence tearing apart the supreme law and with it, the rule of law.
Retired Supreme Court judge, George Wilson Kanyeihamba, said this time, he is on the side of the Chief Justice on the position of the law.
“The President doesn’t seem to understand the law. Everybody is presumed innocent until proved guilty by a competent court. Before that, you are not a convict and you deserve bail,” he said by telephone last evening.
Justice Kanyeihamba, a former attorney in the early days of President Museveni’s government, who has since turned a vocal critic, added: “The Chief Justice (Owiny-Dollo) is absolutely right and the President is wrong. If we are governed by law, even the [ruling] National Resistance Movement (NRM) party is under the law. We have a reached a stage where in this country the NRM party is authority in everything. This one, I am 100 percent with the Judiciary.”
Mr Dan Wandera Ogalo, a constitutional lawyer and one of the delegates that considered and enacted the 1995 Constitution, said contestations about the subject of bail require mature and dispassionate evaluation; otherwise, it will boomerang.
Incarcerating a person for long on suspicion of committing a capital offence, before a court decision, is unjustified punishment and erodes the presumption of innocence of a suspect and the rule of law, he said.
“[The] presumption in criminal cases is that someone is innocent until convicted. If you refuse to give someone bail because he has been charged with a capital offence, it’s already presumed that he is guilty…” Mr Ogalo said.
Mr Robert Kirunda, a law lecturer, said the President may hold personal views like other Ugandans, but so long as the law is still the way it is, courts will be obliged to continue granting bail based on the position of the law.
Explaining what could have informed the President’s stand, deputy Attorney General Jackson Kafuuzi said he thinks the head of state wants suspected capital offenders kept away on longer remand – for 180 days or longer – in order to isolate them from the offended population, which is more likely to retaliate.
“I think the President’s concern relates to corruption because people are stealing people’s money and yet the public does not know that being granted bail does not mean the end of the case. Whereas it’s a right for everyone to apply for bail, one has 180 days to be on remand and can only be released on bail under exceptional circumstances like ill health, advanced age, among others,” Mr Kafuuzi said by telephone.
He added: “Where the public perceives [the suspect on the] wrong, once you grant them bail, they lynch you. The public gets desperate how a suspect is arrested and soon [released and] seen walking freely on the street.”
Death for capital offenders
The President also used yesterday’s Kiwanuka Memorial Lecture to demand that convicted murders should be sentenced to death by hanging, not life imprisonment.
“The other problem I am beginning to see, is the issue of life imprisonment when someone has killed a person. The one you killed is not on life imprisonment, he [or she] is dead. So, for us, it’s an eye for an eye. It must be a life for a life. This is the way people understand justice in the villages,” he said.
Mr Museveni added: “This is also the way the freedom fighters understand it, but we are going to engage the Judiciary, and also going to take it up politically to a constitutional level. It’s very dangerous and a big provocation and the judges must be very careful. We cannot accept it.”
But Mr Ogalo said the Supreme Court landmark decision in the Susan Kigula case changed the punishment for convicted murderers from automatic death sentence to the penalty being the maximum possible.
Justice Owiny-Dollo in his remarks about the abduction of the first black Ugandan Chief Justice Kiwanuka on September 21, 1972 from his chambers at the High Court Building in Kampala by soldiers of then President Idi Amin, said they cannot be claiming to honour his legacy when it takes five years to dispose of a case.
The Chief Justice also said Kiwanuka was being celebrated amid continued rights violations in the country, 49 years after his death.
“On the other hand, we continue to witness victims of torture and other abuse of human rights brought to court. Cases of fabricated evidence that cannot stand in court abound. Instances of refusal to respect decisions of courts are frequently reported,” he said.
Justice Owiny-Dollo added: “All these unfortunate practices pour cold water on the memory of Benedicto Kiwanuka. It is on a day such as this when we honour the memory of our gallant judicial officer that we must, each of us, rededicate and recommit ourselves to ensure that this country enjoys the rule of law and democratic dispensation.”
Museveni faults Mengo
President Museveni also said Mengo, the administrative seat of Buganda kingdom, victimised Kiwanuka for having stood against the idea of federalism.
He faulted his party then, the Democratic Party (DP), for having allowed Kiwanuka to serve as Amin’s Chief Justice.
“Kiwanuka was mistreated first by Mengo. I don’t know who is writing, but this must be captured. I have had the opportunity of being active for so long. Then comes in Idi Amin; that is where I disagreed with my DP that time: Why did you allow [Kiwanuka] to become Chief Justice for Idi Amin. This was a mistake,” he said.
At the same function, former Chief Justices, Odoki and Bart Katureebe, received the Benedicto Kiwanuka Life Achievements award in recognition of their distinguished service to the Judiciary over the years.
Also a new monument of the late Chief Justice Kiwanuka was unveiled by President Museveni.
What the law says
The right to bail is a fundamental right guaranteed by Article 23 (6) of the 1995 Constitution. Its basis is found in Article 28 of the same Constitution which states that an accused person is to be presumed innocent until he/she is proved or he/she pleads guilty. Article 23 (6) of the Constitution states that:
Where a person is arrested in respect of a criminal offence—
(a) 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;
(b) In the case of an offence which is triable by the High Court as well as by a subordinate court, the person shall be released on bail on such conditions as the court considers reasonable, if that person has been remanded in custody in respect of the offence before trial for one hundred and twenty days;
(c) In the case of an offence triable only by the High Court, the person shall be released on bail on such conditions as the court considers reasonable, if the person has been remanded in custody for three hundred and sixty days before the case is committed to the High Court.
Museveni views on bail over the years
September 22 2021
President Museveni while presiding over the swearing-in of six new High Court and Court of Appeal judges at State House, Entebbe, re-echoed his dissatisfaction by the Judiciary in giving bail to suspects facing capital offences. He said the continued provocation to release on bail suspects with capital offences, will force him to summon the NRM caucus to deliberate on this issue. “For somebody to kill a person and you give them bail is provocation. It is abominable. This bail, what is the hurry? Who are you trying to please? Who said bail is a right,” he said.
Mr Museveni while meeting members of the ruling National Resistance Movement at Kololo Independence Grounds, called for amendment of the Constitution to deny bail to all civil servants who are battling corruption charges, especially those embezzling public funds. The Head of State said just like rapists, murders, terrorists, civil servants who steal public funds should be added to the list of criminals whose bail should not be granted for at least 180 days.
“There are two things I am not going to accept anymore; police bond and [court] 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… “I have been very soft on these institutions [Judiciary and the police] who are always stepping on us,” Mr Museveni said during the 2018/2019 National Budget presentation.
While speaking at the 16th annual judges conference, Mr Museveni lashed out at the judges for claiming that bail is a “right” and yet the Constitution says bail “may be granted” but it was not a must. He said this in regard to the 2011 release on bail of former Arua Municipality Member of Parliament Akbar Hussein Godi, who was facing murder charges after he shot dead his wife, Rehema Caesar in Mukono District. The former MP is serving his 25-jail term at Kigo prison after he was found guilty of murdering his wife.