JUDGES CAN"T BE ACTIVISTS FOR HUMAN RIGHTS ABUSES

Last week’s Judicial Roundtable on the Domestication of International instruments registered some startling views from the learned members of the bench who argued that suspects should stay on remand for longer periods without trial.

Apparently ,the justices led by court of Appeal judge , Amos Twinomujuni , were up in arms- criticizing parliament for amending the criminal penal law thus reducing the remand days for capital offenders before they can qualify for automatic bail from 360 to 180 days and 120 to 60 days for minor offenders.

Following these amendments to the Penal code, the right to bail for accused persons has become a controversial issue in judicial circles. Different judges have given different interpretations to the new provisions causing confusion not only within the legal fraternity but among the public as well.

With due respect however, their justices reasoning that the reduced remand period for suspects is a threat to public order and security since thugs and fugitives would have a field day should not go unchallenged.



Although courts of law have interpreted the constitutional right to bail to be discretionary and not an absolute entitlement, this should be read together with article 28 (3) which provides that every person who is accused of a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty.

Further still, article 23 of the constitution guarantees the protection to personal liberty – a right so important its only second to the right to life among those provided for in bill of rights provided for in chapter four of our constitution.

The exception to the right to liberty is for purposes of bring a person before court in execution of an order by court or upon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda.

Article 23 also renders redundant the provisions of section 76 of the Magistrates Act which hitherto allowed a magistrate not to release a suspect from custody if its expedient for the protection of the public.

In the constitutional Court case of Uganda (DPP) vs. Dr. Kiiza Besigye, court noted that bail is a constitutional right which is derived from the presumption of innocence until proved guilty by a court of competent jurisdiction.

The constitutional court in this matter pronounced itself on the cardinal principle of constitutional interpretation. Court stated that when interpreting an article or clause of all articles bearing upon a subject matter under discussion, they have to be brought into purview and read or construed together as one whole so as to bring out the greatest effect of the document (constitution).

Bail court reasoned should not be denied mechanically simply because the state wants such orders. The refusal to grant bail shouldn’t be based on mere allegations, the grounds must be substantial.

This is the reason why parliament granted courts the prerogative to exercise their discretion to grant bail in exceptional circumstances as stipulated under section 15 of the Trial on Indictment Act , which include, old age, grave illness , obtaining a certificate of no objection from the DPP, infancy of the accused .

It’s not legally bidding therefore for judges to treat remand as a punishment. Suspects should be allowed to access justice because justice delayed is justice denied and this will always be unconstitutional.

A refusal to grant bail would contradict the suspect’s inherent right of innocence and indirectly suggest that the law presumes the suspect guilty of the offence before he is put to his defence in court. In fact parliament should urgently amend the law to reduce the remand days further.

Suspects should not suffer long remand periods without trial because of government’s inadequacies , incompetence and corruption experienced in the management of criminal cases.

It’s only last week that daily monitor exposed these inadequacies when it quoted a secret police report which indicated that a single detective in police handles 58 instead of 12 criminal cases a year. According to the police repot, crime is growing while state institutions are not responding adequately thereby denying Ugandans justice.

People should only be arrested when there is reasonable proof that they have committed a crime and the state should then expediently put them on trial.

Judges should also be reminded that we live in fragile political environment where flimsy charges are preferred against political opponents or vocal critics government without hard evidence.

This means that all Ugandans including flamboyant military generals are potential suspects or jail birds for that matter. The judiciary is a very important institution in ensuring the respect for human and civil liberties.

The writer is a journalist and Advocate
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