MBALE – Your Excellency, I have been on a country wide tour to gather views on your anticipated plan to scrap bail and police bond for capital offenders.
To put your quest into perspective, I visited two districts in every region of Uganda and talked to men and women, the youth and the elderly, the poor and the rich, the illiterates, the semi illiterates and the educated as well as religious leaders and of course Lawyers.
The majority said the law on bail must remain intact, arguing that it is the only law that may guarantee their freedom in the face of future persecutions.
Museveni’s burning desire to scrap bail did not begin yesterday and if he had powers to do so without consulting anyone, things would have changed by now.
During the 2010 State-of-the-Nation address, Museveni is on record for having said that corruption cases involving civilians should be referred to the Court Martial instead of a civilian court.
His argument was that there were/are loopholes in the trial of corrupt officials in the civilian courts because courts waste a lot of time searching for evidence.
The President’s proposal was influenced by the usual gymnastics of the court martial where getting bail is next to impossible as was seen in the recent case of the National Unity Platform supporters who were arrested and charged with unlawful possession of ammunition even when they were clearly innocent.
Ugandans need to be reminded that the issue of scrapping bail for capital offenders has always been on Museveni’s mind, executing it has been his problem for lack of allies, maybe he could succeed with this new Parliament.
After emerging victorious in the 2011 General elections, Museveni is also on record for having tasked his NRM Party Members of Parliament to prepare to amend the Constitution to deny bail to any rioters and those he described as economic saboteurs.
That was then, today he is talking about capital offenders but his emphasis is on murder and treason. He may as well have forgotten that bail is a fundamental right and should remain intact since there is no guarantee that those who want the law to be amended today will not become victims of the same tomorrow when the law is long gone.
It is now official; the President has declared war on bail for capital offenders and made it clear that granting bail to such people by the courts of law is the highest level of provocation, a grave mistake that he will not tolerate any more.
He will therefore use all means available to him to curtail the “injustice” otherwise known as bail and his point of reference are the current murders in Masaka and the neighbouring districts.
Mr Museveni believes that the “murderers must equally be subjected to an inconvenience –an eye for an eye” by being incarcerated at least for the 6 months before being considered for mandatory bail if at all.
The last time I checked, President Museveni was a staunch Christian, In Fact he was the head of the scripture Union at Ntare High School. It is possible that the man from Rwakitura eventually backslid but I think he should have kept the few values he obtained back then. He is now busy misquoting the meaning of “Am eye for an eye” for his own benefit.
When Museveni made his remarks that bail should not be granted to capital offenders, there was a lot of bitterness and anger on his face, one could tell that his motives were focused on a certain category of people, his political opponents. He re-echoed the same during the Ben Kiwanuka day and in effect mocked the man who stood for truth and justice during Amin Dada’s reign.
To talk about an “eye for an eye” in this age and era is a mockery of religious teachings especially Christianity. I have since waited for a response from the Muslim in vain.
On Saturday, I waited for a word from the Adventist in vain, and then on Sunday, I expected a barrage of attacks from the followers of Jesus Christ again in vain. I then recalled that bold hearted Ugandans such as Sheik Muzaata, Yonah Lwanga and Cyprian Kizito Lwanga have since passed on, thus my attempt to wear their oversize shoes.
When news broke out that Makindye West Member of Parliament Allan Ssewanyana had been re-arrested even after securing bail, the sympathetic reaction of Ugandans irked Museveni. Clearly he was agitated and wondered why “murderers and terrorists”-(never mind that it is only the courts of law that have the power to declare somebody a murderer or terrorist) would enjoy their freedom when the relatives of those they hurt are in pain. In other, words, one would be right to say Museveni agreed with the re-arrest that would have been cured by amending the charge sheet in order to add the new offences. The President later addressed the nation expressing his dissatisfaction with the decision of court saying such people must suffer the fate their victims suffered-an eye for an Eye. Surely the President’s views appear to have convicted Sewanyana and Segirinya even before the trial starts.
The case would have been different if Museveni said he was fighting bail because it had become a conduit through which judicial officers extort money from the public, that would be understandable but his wish is to have bail for suspected capital offenders scrapped or have the accused persons first stay on remand for the mandatory 180 days before being released on bail.
Now whether one spends the mandatory 6 months in jail, it comes back to nothing but bail. Museveni said he would instead find a political and legislative solution to the matter.
This means that any time soon, an NRM Member of Parliament will appear with a proposal to amend Article 23 (6) of the 1995 Constitution which provides for the right to bail and Article 28 of the Constitution which provides for the presumption of innocence.
The amendment of the foregoing provisions will in effect call for the amendment of the Magistrates Court Act, Cap 16, the Trial on Indictment Act, Cap 23, the Police Act, Cap 303, the UPDF Act, No.7 of 2005, and the Criminal Procedure Code Act, Cap 116 which have provisions for bail. Whereas all this may be possible, we may never be in position to change Article 11 of the United Nations Universal Declaration of Human Rights which requires that an accused person must be treated with glove hands which may include being granted bail in the meantime until he/she is tried.
Museveni is not the biblical alpha and omega but his previous record shows he can move things if he so wishes. How I wish he could begin by fighting corruption that has eaten Uganda’s past, present and the future. Infact corruption is more provocative than the capital offences being referred to by the President. The people who steal money intended for services kill more people than the current murderers in Masaka. The corrupt also dent Uganda’s image among the donors and those who lend us money every financial year.
I love the energy Museveni uses when he want something done, once he points his finger at something, it must work out against all odds. You will recall when he woke up one morning and directed his Internal Affairs Minister Aronda to institute the National Identity cards project, banning the use of hoods by motorcyclists, instituting of surveillance cameras on highways and streets; registering phone numbers and most recently his desire to place tracking devices on engine moving machine, now the scrapping of bail means that his wish can always happen and so would have been the case with the rampant corruption.
I would like to remind the President that the phrase “an eye for an eye” was used during the trek of the children of Israel and was intended to serve a different purpose and in a different environment given the circumstances that prevailed. The people of Israel were different from the nations around them. They didn’t have a king or President.
The law was to be their guide and standard. The weakest or poorest person among them had the same rights as the wealthiest or strongest. Moses had spent significant time during the first three months of the Exodus settling disputes among the people by informing them of God’s decrees and instructions. Moses was their “political” and religious leader yet at the same time had to act as a judge and a prosecutor. He was the very person taking complaints from his people to their God and receiving instructions from God as a prophet.
In his push for an eye for an eye, I think Museveni picked his message from the book of Exodus 21:22 which says if people are fighting and hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows. But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise. In context, this verse is in response to a particular situation where a woman gives birth prematurely after being hit by someone who is fighting with another person.
If the baby or the pregnant woman was injured or even killed due to the carelessness of another person, her husband had a right to seek restitution for the harm done to his family. The same message is in the book of Leviticus 24:18 while Deuteronomy 19:19-21 emphasis a punishment as a deterrent measure which our courts have been practicing for a long time, a punishment to warn and to scare others from committing the same crime.
Many people wonder if the phrase, “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise” was applied literally. In the Jewish Oral tradition called the Talmud and among Christian scholars, the consensus is no; this was not taken literally but instead used as a standard by judges to set the fine and appropriately punish the perpetrator for the harm. In other words, an eye for an eye is a thing of the past; Museveni should not be seen to be pushing the same into our future.
When you read the book of Mathew 5:38, the application of “an eye for eye” had changed during the 1,300 years between the law given to Moses and Jesus’ time on earth. In Jesus’ time, it had become a means of justifying retaliation between individuals and an obligation not to overlook an insult or harm, rather than a standard by which judges awarded damages after a loss.
The law which authorized retaliation (a principle acted upon by all primitive people) was a civil one. It was given to regulate the procedure of the judicial officer in determining the amount of compensation in every case of injury but did not encourage feelings of private revenge. The later Jews, however, mistook it for a moral precept, and were corrected later on in the book of Mathew 5:38-41
“You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. And if anyone wants to sue you and take your shirt, hand over your coat as well. If anyone forces you to go one mile, go with them two miles. Give to the one who asks you, and do not turn away from the one who wants to borrow from you”
If I recall very well the little religious education I acquire many years ago, Jesus was calling upon his followers to resist seeking revenge.
This passage is followed by Jesus’ command in Mathew 5:44 “But I tell you, love your enemies and pray for those who persecute you.” Jesus’ examples of being slapped on the cheek, being sued for a shirt, or walking a mile are relatively minor compared to the original context of “an eye for an eye” found in Leviticus and Exodus. Jesus was calling his followers to rise above their desire for revenge.
As Christians, I expect Museveni to hold himself to a higher rule than the law that he is pushing for in order to punish those that court have not pronounced guilty. I expect him to preach and hold himself to the standard of love that Jesus gave us. However, Jesus’ command, “turn them the other cheek also” or “hand over your coat as well” should not be used to excuse abuse, or breaking the law.
My view is that we should allow the courts of law to do their work just like the judicial officers cannot wake up one morning and order Executive to drop one of his ministers unless the same arises out of a case that has been adjudicated upon and concluded.
If the scrapping of bail law must happen, this is my advice to you Mr. President. Begin by quitting the commonwealth system which advocates for the presumption of innocence to the presumption of guilt practiced in other jurisdictions. This will help us push for the scrapping of bail for all suspects. Secondly, expand and improve all prisons in the country to accommodate the incoming influx of inmates who would have been denied bail.
Expand and improve police cells to hold suspects for a period to be decided by the arresting officer, Provide a fund in the national budget to compensate victims of malicious arrests and persecutions disguised as prosecution, provide an allowance to the families of people held on remand beyond 30 days before trial and to amend the law to allow victims of malicious prosecutions to sue the Directorate of Public Prosecutions directly. Lastly, cease by signatories to the United Nations Universal Declaration of Human Rights and other conventions short of which you are wasting time attempting to scrap bail for capital offenders.
Mr. Roger Wadada Musaalo is a Lawyer, human rights activist, researcher, and politician