Uganda chief justice Alfonse Owiny Dollo clashed with the Museveni over the move to scrap bail for suspected capital offenders.
President Museveni while addressing the Benedicto Kiwanuka Memorial Lecture at High Court Building pushed to scrap, prompting constitutional experts to warn that the move could boomerang since threatens the presumption of a suspect’s innocence until proven guilty.
This is 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.
National Resistance Movement members of parliament yesterday also met at Kololo Independent Grounds for a party caucus with the president over the same issue of banning bail for capital suspects since president Museveni had early wanted a referendum on the matter with NRM parliamentary caucus.
“For somebody to kill a person and you give them bail is a provocation. It is abominable. I would like us to cure this ideological disagreement. This bail, what is the hurry? Who are you trying to please?” he said.
“We are going to work on this. I am going to summon the NRM caucus and if necessary, we put it to a referendum. With this provocation, people will take the law into their hands,” he added.
At the same occasion, Museveni also said that the law has led to increased mob justice, arose from a deviation by the Justice Benjamin Odoki that made Constitutional Review Commission from the wishes of Ugandans.
“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.”, he said.
“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”, he added.
The president further said that he checked on the minutes of the Constitutional Review Commission and people did not want bail for certain offences according to the records.
However, Justice Owiny-Dollo, in reference to media reports about repeated demand to end bail for capital offenders by the president, he 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.” Justice Owiny-Dollo said.
A 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 while talking to a certain media house.
“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.’’ He added.
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, who is 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.
According to Mr Ogalo, 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 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.”
Yesterday during the parliamentary seating, Opposition MPs led by their leader, Mathias Mpuuga walked out of parliament in protest against the re-arrest of fellow legislators Muhammad Ssegirinya and Allan Ssewanyana after being granted bail by the court.
Kawempe North MP Muhammad Ssegirinya and Allan Ssewanyana of Makindye West who had just been granted bail by court were re-arrested by security travelling in Toyota Hiace vehicles commonly referred to as “drones” outside the Kigo prison premises.
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