As we all remember during the fourth annual memorial lecturer for the slain chief justice Benedicto Kiwanuka held at the judiciary headquarters this year, his excellence Yoweri Kaguta Museveni Tibuhaburwa expressed his wish to have bail for suspected capital offenders scrapped.
In his words, the President said: “It’s a provocation I cannot allow see somebody who has killed a person walk around.
To the legal fraternity, this statement not only threaten the right to protection of personal liberty under article 23(1) of the constitution but undo the general progress in the rule of law.
Honorable members, before I proceed, allow me to remind you about this brief history.
In the late 1980, President Museveni went to the bush to liberate Ugandans from what he termed as the then hostile regimes.
The word “liberate” as used means to set free from imprisonment, slavery, oppression or to give rights meaning that his efforts were aimed at securing the right to protection of personal liberty. This however wasn’t enough without a set of laws that could guarantee such rights and it’s through this history that saw our constitution being promulgated on the 8th day of October 1995 by the constituent assembly.
To sum it up, absence of the right to protection of personal liberty is one of the reasons President Museveni went to the bush.
Now for the legislators who are ignorant of human rights, I want you to know that the right to liberty is next only to the individual’s right to life itself.
Liberty is as crucial in a free and democratic society as breath is to life. Liberty is so precious a commodity that even though president Museveni fought for it 35 years back which he doesn’t remember now, during the American struggle for independence 300 years ago, one of the American independence Protagonist summed up the situation with the following eloquent and immortal declaration.
Declaration not of suicide and despair but of defiance and triumph:
“Give me liberty or Give me death”.
In brief, liberty is the very essence of freedom and democracy which NRM has preached for all its life and to tamper with a suspect’s right to apply for bail is not only to tamper with the aspirations of the people and their rights to affair hearing which is non derogable but to divert from the common law justice system which will be a clear overthrow of the constitution.
“Please don’t say that we didn’t tell you”.
For you who were appointed a minister, you lose nothing to advice the president that under a common law justice system criminal justice is based on the cardinal principle of presumption of innocence and it’s on that norm that the right to apply for bail is premised.
Remind him further that nothing on earth can adequately compensate a Ugandan for lost freedom and that if he doesn’t drop this proposal he ought to have laboured for nothing in the bush.
In any case the law on bail is very clear and fair i.e. Article 23 (6) (a) is to the effect that where a person is arrested in respect of a criminal offense, 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.
Now, quoting the words “The court may grant that person bail” means that the provision is not coached in mandatory terms and thus the desecration to grant or deny the accused bail is upon court to be exercised judiciously in the name of the people and in conformity with the law as per article 126(1) of the constitution.
The duty to convince court deny bail lies on the state/prosecution which is at all times represented by professional lawyers able to give reasons that can sway courts.
In the alternative honorable members if the president’s greatest concern is victims in cases being provoked, remind him of his duty to promote public awareness of the constitution under article 4 which will enable the public appreciate their rights under a common law justice dispensation.
Mr. Samuel Mwesigwa is a Human Rights activist
Email address: Smwesigwa960{@}gmail.com.
