KAMPALA – When the story of a Ugandan award-winning novelist Kakwenza Rukirabashaija hit the headlines many including myself laughed it off thinking the state Government was playing its usual diversionary mind games to kill some trending issue of national importance.
Kakwenza’s brutal arrest, detention beyond statutory hours, being detained incommunicado, torture and wanton disrespect for two Court orders of habeas corpus was based on a draconian law which prohibits acts intended to alarm, annoy or ridicule the President and his son Gen Muhoozi Kainerugaba.
Kakwenza Rukirabashaija is best known for the international award-winning novel “The Greedy Barbarian”, a satirical piece which describes high-level corruption in a fictitious country which I seem to know.
It appears some people had construed his novel to have been talking about Uganda and were waiting for the right opportunity to pounce and when that chance arrived on 28th December, they acted with speed and of course with impunity to settle past scores.
After several days in unlawful detention, Kakwenza was hurriedly taken to Court, charges read to him which he naturally denied and like the norm is, remanded to Kitalya Prison until 21st January 2022 as if there was no option for bail.
A judicial officer granting bail at such a time and for such an offence could annoy the person of the President or even the son. The prosecution read the charge indicating that on December 24, 2021, Kakwenza willfully and repeatedly, used his Twitter handle to disturb the peace of President Museveni and that of his son Gen Muhoozi Kainerugaba. in the same period with no purpose of legitimate communication.
For this case to ever see the light of day, the prosecution will need to rely on the evidence of Museveni personally and that of his son Muhoozi Kainerugaba if they are to succeed in pinning Kakwenza.
Previous attempts to secure a precedent under the offence of disturbing the peace of the President have failed flat. Who knows, maybe the police arrested Kakwenza and charged him in an attempt to avoid annoying the President. But what is the rationale in the DPP sanctioning a file just for the sake of it aware that the witnesses will not come to give evidence and that a conviction is out of range.
Just a few months ago, the Director of Public Prosecutions found herself with a nonstarter appeal challenging a decision by the Anti-Corruption Court that money laundering charges were maliciously instituted against a one Paul Wanyoto Mugoya. It is the final statements of the Trial Judge that irked the emotional decision to appeal when he said the charges against the applicant Paul Wanyoto were an afterthought actuated with malice. The Judge went on and said, the charges revealed the underworld of some investigators in manufacturing evidence against people they disagree. The application exposed the criminality that goes behind the scenes before some people are charged in court. The Director of Public Prosecutions has the discretion to decide on who to charge in court but malice should never be part of that discretion. The office of the DPP should be above petty machinations….
While this hullabaloo was going on in the Kakwenza, I was quickly reminded of this comedian with an obscene name “Teacher Mpamire” who has specialized in imitating the President even in his presence but he has never been arrested for reasons that he makes the President happy, why should those who annoy him be arrested, detained for long hours, tortured and imprisoned? Why somebody should be deprived of his liberty just because he said Museveni’s long stay in power has imposed enormous suffering on this country or that the President’s son is obese or curmudgeon.
Who does not know that life is not a constant, today you are happy, tomorrow you are annoyed and guess who makes you happy, human beings and guess who makes you annoyed, human beings again. I personally do not see the difference between Kakwenza and Teacher Mpamire, they are all playing different roles in life, some make us happy, others annoy us, even some words uttered during comedy can be so annoying but who says a comedian has immunity to say annoying things in a joking way and not Kakwenza whose wise figurative write up are a reminder to all of us to watch our body weight lest we become obese. The medics tell us that if your Body mass index is 30.0 or higher, it falls within the obesity range. Well, if that analysis is okay, I hope Kakwenza has his facts right.
Kakwenza’s polite statement allegedly breached Section 24 of the computer misuse Act and Section 24 of Uganda’s Penal Code Act which provides for something that I find wanting and I believe the same was inserted into our laws by our colonial masters to make ahead of state untouchable and to elevate him to a semi hemi demi-god who must be protected from being annoyed. It provides that any person who, with intent to alarm or annoy or ridicule the President, willfully throws any matter or substance at or upon the person of the President, willfully strikes the person of the President and or assaults or wrongfully restrains the person of the President, commits an offence and is liable to imprisonment for life.
Besides, the provision itself is without borders, it could even extend to shielding the President’s herdsman, house girl or even office messenger whereby anything said, written or done to them by extension annoys or affects the peace the person of the President in the long run.
Take note of the penalty under that section, imprisonment for life just to scare off anyone with intentions of breaching the provision. it is in my thinking that the foregoing section is an appeasement provisions that must be repealed and deleted from our laws, the President is just human and must go through what all other human beings go through, he is not a special being, he must be happy today, be sad tomorrow and life continues. This is one of the draconian colonial law that should not be allowed to influence how things are done in modern-day democracy which entails the rule of law as opposed to rule by law. To use draconian laws to govern a country is less rule by law, to the state, it does not matter how bad a law is provided it is an act of parliament, it must be implemented.
Rule of law, the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the Law, secures a non-arbitrary form of government and more generally prevents the arbitrary use of power. Arbitrariness is typical of various forms of despotism, absolutism, authoritarianism, and totalitarianism. Despotic governments include even highly institutionalized forms of rule in which the entity at the apex of the power structure such a President is capable of acting without the constraint of law when he wishes to do so.
In general, the rule of law implies that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one including the most highly placed official such as the head of state is above the law.
The legal constraint on rulers means that the government is subject to existing laws as much as its citizens are. Thus, a closely related notion is the idea of equality before the law, which holds that no “legal” person shall enjoy privileges that are not extended to all and that no person shall be immune from legal sanctions. In addition, the application and adjudication of legal rules by various governing officials are to be impartial and consistent across equivalent cases, made blindly without taking into consideration the class, status, or relative power among disputants.
Not only does the rule of law entail such basic requirements about how the law should be enacted in society, it also implies certain qualities about the characteristics and content of the laws themselves. In particular, laws should be open and clear, general in form, universal in application, and knowable to all. Moreover, legal requirements must be such that people are able to be guided by them; they must not place undue cognitive or behavioral demands on people to follow. Thus, the law should be relatively stable and compromise determinate requirements that people can consult before acting, and legal obligations should not be retroactively established.
On reading Kakwenza’ story, one piece of literature by Amnesty International comes to my minds; Rule By Law: Discriminatory Legislation and Legitimized abuses in Uganda. In that well-researched piece of literature, the writer began by quoting the wise words of a wise man of a wise God Zac Niringiye, Retired Assistant Bishop of the Diocese of Kampala who said “It is no longer rule of law, it is rule by law, the law of the ruler”. He was lamenting about his experience as a new entrant in politics leading to the 2016 general elections. It was a lash at discriminatory legislation that were constantly invoked by security organs against opposing forces for purposes of suppressing them from talking.
But we seem to have learnt nothing from past experiences. In 2017, Makerere University researcher Dr Stella Nyanzi was charged for the posts she made on her Facebook attacking the First Lady Janet Kataha Museveni through a vulgarized poem in total violation of Sections 24(1) of the Penal Code Act and 24(2)(a) of the Computer Misuse Act. These sections define cyber harassment as the use of a computer for purposes of making any request, suggestion or proposal which is obscene, lewd, lascivious or indecent.
The State, in prosecuting Nyanzi under the Computer Misuse Act, noted that the language that she used was vulgar and aimed to ridicule the President and his late mother, and that it violated the Presidents’ right to privacy. Nyanzi was subsequently charged and convicted but later on acquitted by High court judge Henry Peter Adonyo after the state failed to convince the court on whether the crime was committed in Uganda or elsewhere in another country.
Provisions such as Sections 24(1) of the Penal Code Act and 24(2)(a) of the Computer Misuse Act show us that even though the British left our country, their spirit of imperialism still lives on through the law of Sedition. For the scholars of jurisprudence, I will not get tired of reminding you of the theories of the Marxist that laws are made by the state, representing the interests of the ruling class. … He said that the ruling-class have the power to ensure that no laws are passed that could damage the position and power of the ruling class.
The author, Roger Wadada Musaalo is a Lawyer, human rights activist, researcher, and politician