Anti-corruption protests stress test Judiciary

Security personnel on Tuesday erected barricades on roads leading to Parliament to halt a peaceful march led by youngsters who broke away from the traditional repertoire of protests usually led by the Opposition. 

The barrel of the gun, however, prevailed when scores of the protesters were rounded up and carted off to several jails. Others were detained incommunicado and without access to their families and lawyers, which breaches Article 23 of the Constitution on their right to personal liberty.

Some of those detained alleged that they had been sodomised by their captors, a dark underbelly first reported during the NRA counterinsurgency in northern Uganda in 1986—that continues to burble below the radar.  Rusoke Kituuma, the spokesperson of the Uganda Police Force (UPF), denied the claims. 

“Spreading malicious lies and baseless allegations is highly unprofessional and unethical. Instead, we urge you to work constructively with the UPF to uphold the rule of law and protect the rights of all citizens,” he said.

Nearly 80 protesters were later paraded before courts of law where they faced frivolous charges, including the offence of idle and disorderly. The offence, which is part of the colonial relic of vagrancy laws, disproportionately affects citizens in the lower rungs of the economic status. In December 2022, it was successfully challenged at the Constitutional Court in the case of Francis Tumwesige Ateenyi versus Attorney General.

Mr Tumwesige sought the declaration that sections 168 (l) (c) and (d) of the Penal Code Act, which prescribe the offences of idle and disorderly as well as rogue and vagabond are unconstitutional insofar as they contravene the principle of legality in article 28 (12). The principle requires every offence to be defined in law. The petition also contended that the colonial-era laws contravene article 21 (l) of the Constitution that guarantees equality before the law and article 28(3) (a) which underpins the presumption of innocence for anyone charged with a criminal offence, among others.

Out of kilter
Justice Egonda Ntende, who authored the lead judgment, cited the persuasive authority of the United States Supreme Court in the case of Kolender versus Lawson. 

“We have noticed that the more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establishes minimal guidelines to govern law enforcement.’ ... Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep (that) allows policemen, prosecutors, and juries to pursue their personal predilections.”

Yet, on Tuesday, some of the protesters were paraded in court and charged with the offence of idle and disorderly, which was struck down by the Constitutional Court in a flawed trial that has placed prosecutors and judicial officers under the microscope. A great deal of the protesters were injured from the physical altercations and egregious torture tactics used by security personnel, while others sought compassion from the psychological trauma.

By the tyranny of the gavel and in a travesty of justice, the youth were denied bail and sent to face dehumanising conditions behind the iron curtain at Luzira prisons.

Robert Kabushenga, who previously served in the government as the executive director of Uganda Media Centre and managing director of New Vision Publications, put it succinctly on the X (formerly Twitter).

He wrote: “We were told the prisons would be full of thieves stealing public funds. Instead, the prisons are full of young people fighting the thieves. We were told a war had been declared against corruption. Instead, the guns are now turned on the young people waging that war.”

Neocolonial agents
Hunkered down in the bunker in his fight against corruption, President Museveni communicated on the microblogging site X where he congratulated security personnel for nipping the protests in the bud. The President claimed that the march was funded by neocolonial agents through their surrogates in the country.

“Element no. 1, was funding from foreign sources that are always meddling in the internal affairs of Africa for the last 600 years—slave trade, colonialism, neo-colonialism, genocide, economic exploitation, etc. All those involved should know that Uganda is not a neo-colony where those shallow schemes can be deployed,” he said. 

Mr Museveni revealed that the second element was that the authors and participants in the demonstrations were planning “very bad things” against the people of Uganda. 

“Those very bad things,” he added, “will come out in court when those arrested are being tried. It is possible that some of the participants did not know of the planned foreign funding and the planned bad things.”

Weaponised
On Wednesday, a group of human rights lawyers accused the office of the Directorate of Public Prosecution (ODPP) of “the sinister and treacherous weaponisation of the justice system”. Their letter went on to disclose that the civil society is investigating potential claims for personal liability against “specific commanding officers under the Human Rights (Enforcement) Act and against prosecutors and judicial officers for violating the Uganda Code of Judicial Conduct.”

“Her worship Caroline Kyoshabire at Buganda Road Court was reported to have robotically declined to hear bail applications because it was late. She remanded the accused to Luzira Maximum Security Prison until August 5, 2024 without scrutinising the legality of the charges or even the jurisdiction of her court. Chief Resident State Attorney, Eunice Mbaine, at Nakawa Court was reported to have refused to return to work despite several calls yesterday afternoon,” read the statement signed by Eron Kiiza, Sarah Kihika Kasande, Primah Kwagala, Anthony Odur, Morgan Muhindo, Stephen Kalali, Lillian Drabo, Philip Karugaba, Peter Arinaitwe, and Isaac Ssemakadde.

The lawyers accuse security personnel of subjecting peaceful demonstrators to cruel, inhuman, and degrading treatment, which contravenes section 11 of the Human Rights (Enforcement Act) on non-derogable rights and freedoms, and asked authorities to declare ‘their trials a nullity and the accused acquitted forthwith.’

Jacquelyn Okui, who is a senior State Attorney and publicist at the ODPP, told Saturday Monitor thus: “The Director of Public Prosecutions has called for all the case files involving protesters with a view of reviewing them comprehensively. This review will re-examine the evidence and charges to ensure that justice is served fairly and accurately.”

Defective charge sheets
Beyond the protests, it has become a common practice for high-profile politicians to compel courts of law to bow to their edicts. Several youngsters who have used social media platforms to criticise politicians have been hauled before courts of law on defective charge sheets and subjected to vagrancy charges such as common nuisance.

The detractors have also relied on a misinformation and disinformation campaign that left the Uganda Human Rights Commission (UHRC), which appears to have abdicated its responsibility, to deal with an embarrassing spectacle.

Through the micro-blogging site, X, UHRC falsely claimed that the protestors were at fault because the right to march was not absolute—pandering to a false narrative that had previously been peddled by police officers.

It took the intervention of law lecturer and the head of the Makerere Law School’s Human Rights and Peace Centre (HURIPEC), Dr Busingye Kabumba, to compel the UHRC to correct this falsehood. Dr Kabumba guided that article 43 (2) of the Constitution dictates that the limitation to any rights “must be demonstrably justifiable in a free and democratic society.”

It is the interpretation of Article 43 of the Constitution, which has been subjected to false interpretations. Kabumba’s views reflect those of Justice Joseph Mulenga, the author of the lead judgment in the case of Charles Onyango Obbo and Andrew Mwenda versus the Attorney General, which struck down section 50 of the Penal Code Act regarding the publication of false news in 2004. Mulenga posited that ‘media freedoms’ are not absolute and must not “prejudice” the rights and freedoms of others and the public interest as provided in Article 43 of the Constitution.

However, Mulenga argued that “it is apparent from the wording of [article 43] clause (2) that the framers of the Constitution were concerned about a probable danger of misuse or abuse of the provision in clause (1) under the guise of defence of public interest.” 

He added thus: “For avoidance of that danger, they enacted clause (2), which expressly prohibits the use of political persecution and detention without trial, as means of preventing, or measures to remove, prejudice to the public interest. In addition, they provided in that clause a yardstick, by which to gauge any limitation imposed on the rights in defence of public interest.” 

He concluded thus: “The yardstick is that the limitation must be acceptable and demonstrably justifiable in a free and democratic society. This is what I have referred to as “a limitation upon the limitation.”

Exceptional circumstances
Justice Mulenga said that this limitation can be overridden only in the exceptional circumstances that give rise to that secondary objective, which may include a serious threat, which is not fictional. He cited the 1990 decision of the Supreme Court of India in the case of Rangarajan versus Jagjivan Ram and Others; and Union of India and Others vs. Jagvan Ram and Others where it was argued that “The anticipated danger should not be remote, conjectural or far-fetched.” The President and the police claim that there would be a serious security breach if the march against corruption was given the green light on Tuesday. Is this plausible or is this conjecture and far-fetched?

Led by the fourth phase of resistance, the recent youth-led protests including those in the neighbouring state of Kenya could offer new insights into the kaleidoscope of African social movements, which include trade unions, burial societies, students, and religious groups.

The Kenyan bread protestors relied on the hybrid model—infusing tactics from the West and oral traditional methods from nativist primary social movements like Bunyoro’s Omukama Kabalega to frame the political elite as the ‘new colonial masters.’

The view amongst young Ugandans— a country whose median age is 16—is not any different from their counterparts in Kenya. They believe that the corrupt political elite, which has arrogated itself excessive power and wealth—a special fund for treatment in first-class hospitals, huge salaries, and perks at the expense of unemployed youths—has taken the place of colonialists.

Issue
On Wednesday, a group of human rights lawyers accused the office of the Directorate of Public Prosecution (ODPP) of “the sinister and treacherous weaponisation of the justice system”.

Their letter went on to disclose that the civil society is investigating potential claims for personal liability against “specific commanding officers under the Human Rights (Enforcement) Act and against prosecutors and judicial officers for violating the Uganda Code of Judicial Conduct.”