Bail reforms: Is Executive putting cart before horse?

Ms Babirye, a resident of Nakibano Village in Kimenyedde Sub-county in Nakifuma County in the deeper recesses of Mukono District, lodged a complaint of the defilement of her daughter by an 18-year-old co-employee at the farm where she ekes a living.  

The police officers asked her for Shs70,000 for among others to acquire a PF 3A form at Shs30,000, where a medical practitioner records findings of his examination of the victim and Shs40,000 as transport to the scene of crime.

“I knew the perpetrator because we worked together. I had sent my daughter to gather food (sweet potatoes) when the suspect, co-worker offered to help saying the work was too much for the young girl,” Ms Babirye said, “I did not mind much so I let the two work together but I was very wrong....”

The co-worker at the farm defiled Babirye’s daughter, which she detected the following day. She immediately lodged a complaint on September 16 but failed to raise funds for police forms, so she opted to treat and rehabilitate her daughter. The suspect who is known to the farm owner fled.

After interviewing Babirye last week on Thursday, I sought for answers at the police post where she reported the case and this is what I unravelled. 

A notice is glued to the door detailing that; a police form is free, an assault PF3 form costs Shs20,000: a defilement PF3A form costs Shs30,000: a rape PF 3A form goes for Shs30,000, while both the PFA 2A and PF 24A forms, are free of charge.

“I asked the officers that you claim to protect and serve, but does it apply to only those with money. They said I was the first person they were seeing who could not even raise Shs50,0000. They even asked me to raise the father of the child but I told them we separated years ago and I was on my own but they said at least I should raise Shs20,000. I couldn’t raise any money so I gave up,” Ms Babirye said. 

This means that a complainant who cannot afford the money for the forms, and sometimes transport facilitation for the officers, does not get assistance.

Stories are abound, especially burglary and house-break-in victims of calling the police landlines for assistance only to be told to send mobile money to fuel patrol cars.

The facts and half-truths

According to the 2020 police’s annual crime report released early this year, police recorded 16,144 cases registered as sex-related offences, including defilement, rape, incest, and unnatural offences. Of this, 5, 058 were defilement cases alone, of which 3, 331 were not proceeded with, while 5, 745 cases files were submitted to court out of the 8, 494 case files forwarded to the Office of the Directorate of Public Prosecution (ODPP) which resulted in 794 convictions, 22 acquittals, while 168 cases were dismissed, and 4,761 remained pending by the end of the year.

Averagely, according to police’s crime reports of the last six years, 40,000 capital offences, including aggravated defilement, murder, rape, kidnapping with intent to murder, armed robbery, treason, and terrorism, were recorded annually during the last five years.

President Museveni, during the last months, has argued that granting bail to capital offences suspects, has contributed to injustice.  The subject matter has been a pet subject for President Museveni since the immediate aftermath of the opposition novel protests dubbed "Walk to Work" in 2011, but his calls reached a crescendo recently.

As such, Parliament is due to start debate on the President’s proposed legal reforms on the bail system, intended to tighten the hands of judicial officers and police in exercising the discretion to grant or deny bail and bond, respectively.

The reforms already rubberstamped by Cabinet entail amendment of Article 23(6) (b) of the Constitution to provide that a person accused of committing an offence triable by both the High Court and subordinate courts, shall not be granted bail until after 180 days or trial commencement, or when the DPP discontinues proceedings, whichever is earlier.

The proposal also seeks to amend Article 23(4) (b) and Section 25 of the Police Act, both of which require a suspect to be released on police bond if not charged in court within 48 hours. The changes set out to qualify the period as 48 business hours.

The proposals have elicited flak from all quarters, including Judiciary, Office of the Director of Public Prosecutions (ODPP), Uganda Law Society, law scholars, and the public. 

Law scholars have argued that the bail reform proposals violate among others charters the Universal Declaration of Human Rights, and African Union Commission on human rights and people’s rights.

With a largely pliant August House, there are fears that the contentious proposals could be passed. 

The 1995 prescribes the rights for bail application, which can be granted or denied by the court. Article 23(4) of the Constitution reads: “A person arrested or detained ...shall, if not earlier released, be brought to court as soon as possible, but in any case not later than 48 hours from the time of his or her arrest.”

Section 15 of the Trial on Indictment Act states that the High Court may grant bail to an accused upon the accused proving exceptional circumstances that entitle him or her to be granted bail and also showing that he or she will not abscond when released.

However, in the grand scheme of things, bail is just among other issues plaguing the criminal justice system.  

Mr Charlies Twiine, the spokesperson of the Police’s Criminal Investigation Department, told Daily Monitor in an interview that no single factor works in isolation of the other in relation to the discourse at hand.

“True, when you look at the our (police’s) figure of recorded cases vis-à-vis the disposal of cases via the ODPP, there is a big variance, but this variance is as a result of both institutional and to some extent individual weaknesses,” Mr Twiine said.

“Some of the cases are recorded but once you don’t have sufficient evidence, the ODPP won’t take it up, it will drop it along the way. Yet in our data, the cases remained captured which indicates as if we are not doing anything.”

Statistics

Not just capital offences, but the variance—cases recorded and those forwarded to the ODPP—applies to other lesser offences recorded usually, leaving victims or their families seeking answers. 

The suspects and their families too are affected, especially if they are remanded as the disposal of cases takes time.

In 2017, of the 252,065 cases registered, only 66,626 cases were taken to court, of which 18,961 cases secured convictions, 1,419 cases acquitted and 9,613 cases dismissed while 36,633 cases were still pending in court.

That leaves a balance of 185, 439 still under inquiry or not proceeded with.

In 2018, crime dropped by 5.2 percent wherein 238,746 cases were registered down from 252,065 cases in 2017.  The cases taken to court were 73,035, of which 22,263 cases secured convictions, 1,248 cases were acquitted while 90,763 cases were still under inquiry by the end of the year and carried forward into 2019. The balance is 51,437 cases still under inquiry or not proceeded with.

In 2019, crime decreased further by 9.9 percent with 215,224 cases reported, of which 74,810 cases were taken to court.

In 2020 when the country imposed the first lockdown to contain the spread of the Covid-19 pandemic, crime declined further by 8.9 percent or 195,931 cases registered, of which 56,651 cases were taken to court, out of which 15,657 cases secured convictions, 359 cases were acquitted and 3,754 cases were dismissed while 36,881 cases were still pending in court. That leaves 139,280 cases still under inquiry or not proceeded with.

Mr Twiine said: “Sometimes cases take long to be cause-listed after police has done an excellent job with investigations, sometimes with the ODPP, but the Judiciary (courts) take long to cause-list the cases. A defilement case heard after five years; if the victim was 14 years at the time, by then they are old enough either as somebody’s wife, business manager, university student, and they really want to forget about the past so in most cases are not willing to cooperate, or have relocated to other areas: the suspects if were granted bail cannot be traced.” 

Analysis of police crime reports for the last five years shows that most cases remain pending in the court system by end of each year. For instance, of the 4,460 homicide cases, including deaths by shooting, mob action, poisoning, aggravated domestic violence, fire outbreaks, or other causes not specified, recorded in 2020; at least, 2, 351 cases were investigated, of which only 1, 269 were taken to court of which 1, 983 files were sanctioned by the DPP, resulting in 34 convictions, one acquittal, five were dismissed, and 1, 229 were still pending in court.

Averagely, according to police’s crime reports for the last six years, 4,000 homicide cases are recorded annually. Majority were recorded as pending in the court system, under inquiry or not proceeded with.

All these institutional anomalies exist even for lesser offences, leaving victims or their families seeking answers. The suspects and their families too are affected, especially if they remanded as disposal of cases takes time.  

 In his speech delivered at the opening of the new law year in earlier in February, Chief Justice Alfonse Owiny-Dollo attributed the escalating case backlog to the inadequate funding and staffing of the Judiciary.

Numbers don’t lie

The backlog level as on December 31, 2020 stood at 48,696. In the Supreme Court, 225 of the pending 493 cases, which constitute 46 percent of the cases, are in the backlog category.  At the Court of Appeal, 4,926 cases of the pending 7,351 which constitute 67 percent of the cases are in the backlog category.

Among the High Court Divisions, 11,685 cases or 39 percent of the 29,704 pending cases are backlog. The highest percentage of backlog cases are in the land Division totalling 4,862 cases of the total backlog of 11,685 cases.

In the High Court Circuits, 19,595 cases constituting 52 percent of the 37,566 pending cases are backlog cases. 

Jinja High Court registered the highest backlog with 2,813 cases, followed by Mbale with 2,714 backlog cases and Gulu High Court with 2,607 backlog cases.

The Chief Magistrates’ Courts had 10,359 backlog cases, Magistrate Grade One Courts had 1,893 backlog cases while Magistrates Grade II courts had 13 backlog cases.

Judiciary spokesperson Jameson Karemani told Daily Monitor  that funding and human resource constraints remain a major factor impeding the criminal justice system.

“Remember, capital offences are only heard by the High Court. Most times when a person is committed we don’t have the human resource to handle the cases which are heard in sessions as and when funding is available. Other times the persons suspected are committed to remand for whatever long,” Justice Karemani said.

He further said: “Because of the human and financial constraints the number of sessions heard are limited so cases take longer. Take for instance the Fort Portal circuit court, which I am familiar with; the court handles about seven districts with about 800 criminal cases committed. Ordinarily you would need about 16 sessions and 16 judges to expeditiously handle all the cases, and yet overall we have 58 High Court judges in the country.”

After six years and three months exactly since her body was found in a sugarcane plantation in Lugazi, Buikwe District, the High Court in Mukono this week commenced Desire Mirembe’s murder trial.

Mirembe, then aged 19 years and a medical student at Makerere University, was allegedly killed by her boyfriend and fellow medical student on July 6, 2015. 

The suspect, media reports indicated at the time, confessed to the act, was charged at the Jinja Magistrates Court with murder, and remanded. Sixteen months later on November 24, 2016, the suspect was granted bail.

The deceased’s father is Emmanuel Musoke, the former Kalungu District chairperson. But not even his political clout could help to propel the trial forward. Police sources say investigations were completed in two weeks by August 2015 and the file was submitted to the ODPP. 

At the behest of former Principal Judge Yorokamu Bamwine, the case file was transferred from Jinja to the Mukono circuit in whose jurisdiction the DPP contended that the incident happened. In 2017, the Mukono High Court indicated it does not have money to start hearing the case.

Mirembe’s murder case is among the handful that get constant media coverage, including the August 2019 gruesome murder of Maria Nagirinya and her driver Ronald Kitayimbwa. Two years later, police say investigations were complete and files forwarded to the DPP, but the case is yet to be cause-listed. The suspects have been on remand for two years.

But there are hundreds, and possibly thousands of such homicide cases that are not reported in the mainstream media. 

As a result, thousands of suspects are languishing in prisons on remand for more the 180 days for various reasons including sluggish police investigations, delayed cause-listing, or as a result of human resource constraints plaguing the Judiciary, and the DPP’s office.  In several other instances, police detectives could be complicit and bungle evidence or sometimes the investigations are delayed as a result of poor investigating skills.

Constrained system 

Cases are also impeded by the syndicated corruption in the criminal justice system and sometimes, they are weak to be sustained by the prosecution.

This, the DPP spokesperson Jacqueline Okui said it is because they do not frequently work with police in investigations.

“The ODPP is mandated to guide police during investigations in crimes of criminal nature and report back expeditiously but this is not the case,”  Ms Okui told Daily Monitor. 

“We receive criminal files from police; quite a number of them, which we peruse and make decision including sanctioning charges and then proceed to court, send back files specifying which areas need to be re-investigated or close the files when there is no enough evidence to sustain prosecution."

She added: "There are instances when they [Police] engage us from the beginning to the end, and there are instances when they engage us mid-way or not at all, which all has bearing on the cases."

"Also when it comes to cause-listing we find it important for the ODPP to be involved in the process because as the prosecutors we are conversant with which case is urgent, and which is not; there cases are which are of high demand to the pub

According to the ODDP’s recent performance report, the absence of the DPP in both the investigations and cause-listing of the cases partly accounts for the backlog. Then there is the insufficient funding, and understaffing working at 40 percent, and at least 73 Magistrate courts across the country are without a state attorney assigned to them, which means suspects and cases have to wait longer.

Over the next 45 days starting tomorrow, the DPP and the Judiciary plan to dispose-of a backlog of 700 sexual gender-based violence cases, some capital offences—with the oldest case dating back to 2015. During a similar session in 2019, the oldest case stretched back to 2012.

The bail reforms once approved also have implications for the justice, law, and sector, including having to increase budgets for among others to improve staffing and accommodating suspects in the already congested prisons/police jails. 

In this Financial Year 2021/2022 police budget, crime investigations, forensics and canine services were allocated a paltry Shs48.9b to investigate all criminal cases, while the purchase of specialised machinery and equipment was allocated Shs123b.

But in the grand scheme of things, bail is just plaguing the criminal justice system. The arguments made for it, observers fear, could be a red herring by the Executive to target politicians.

Case backlog

According to the ODDP’s recent performance report, the absence of the DPP in both the investigations and cause-listing of the cases partly accounts for the backlog. Then there is insufficient funding and understaffing. 

At least 73 Magistrate courts across the country are without a state attorney assigned to them, which means suspects and cases have to wait longer.

In 2021/2022 Financial Year, the police budget for crime investigations, forensics and canine services total Shs48.9b, while the purchase of specialised machinery and equipment was allocated Shs123b.

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