{UAH} WHY MUSEVENI'S MILITARY REGIME IS OBSESSED WITH UGANDA'S CRIMINAL JUSTICE SYSTEM

WHY MUSEVENI'S MILITARY REGIME IS OBSESSED WITH UGANDA'S CRIMINAL JUSTICE SYSTEM

Introduction
Since its inception, the Museveni military regime has persistently been obsessed with the criminal justice system. They use it as a scapegoat for their failure to fight crime, deliver justice and a justification for torture, illegal detentions and detention without trial. They argue that the current system favors suspects in that the 48 hours constitutional requirement for suspects to appear in court and the right to bail should be scrapped. They have always taken advantage of criminal incidents like the recent so called terrorist attacks that have seen prominent figures in the country gunned down, to play on public sentiments into towing their line. Good enough the Chief Justice has stood his ground.

To able to understand their motivation, its prudent to examine the brief highlights asBELOW:-

1.  Police Arrest
     Police has powers to arrest anyone suspected of having committed a crime, about to commit a crime, and has omitted to do anything that results into the commission of a crime. Such arrest may be prompt or after getting reports and carrying out surveillance on the suspect. In the later instance, surveillance (close watch) is meant to gather evidence, establish the suspect's associates and toCONFIRM or dismiss the suspicion. It is criminal on the part of Police to use excessive force while effecting an arrest. However, though it is the Police that is mandated to keep law and order, several of the regime's security outfits have been competing with the police in carrying out arrests of members of the public. While the professional police would arrest and carry out a lawful search for any evidence, the other security personnel simply kidnap and loot the personal belongings of their victims. It is very common for some suspects to be arrested alongside with their furniture, vehicles, electronics etc.

2.  Police detention
Police has a detention facility located within the Police station and referred to as a Police Cell meant to hold suspects before they are produced before court. The purpose of detaining someone in the Police cells is to restrain him from escaping, those who show signs of being violent conduct and in some cases those who need protection. It is such suspects that are held in a Police cell that the constitution guarantees the right to be produced before courts of law within 48 hours. On their part, other security agencies detain their victims in ungazetted places commonly called Safe Houses. Of recent after the personalisation of the Police force, suspects are tortured by the Police while at the Police station. In some instances with the connivance of other security agencies. It is also during this stage that some suspects are transferred from the Police station to safe houses where they are detained and tortured. In some instances suspects are transferred from Safe Houses to Police stations. Intelligence agencies have had special cells within Police Stations where their victims are held and tortured. For fear of the of the injuries sustained during torture episodes getting to the public domain, the regime prefers the 48 hours constitutional period extended to weeks and months so that their victims could heal first. 

3.  REGISTRATIONof criminal cases at a Police station
All cases and complaints reported at a Police Station are recorded in the Criminal Record Book (CRB) which is normally kept at the front desk commonly known as the Counter. All the activities of Police officers during the course of their official duties are also recorded in a Station Diary (SD). When a complainant registers a complaint, it is registered in the CRB and allotted a Reference Number thus SRB/......../......../2015.  When a suspect is detained at in police cells, his particulars and the charges are registered too. In cases of illegal detentions and false charges like was the case with the Dr Besigye rape case, they tamper with such records.

4.  Criminal Charges 
It is presumed that every Police Officer has some basic knowledge of the Penal Code Act which is the collection of most criminal offences in Uganda. At the time of the arrest it is a requirement of the law that the suspect be informed of the reasons for his arrest thus the nature of the charges. Even when making entries into the CRB, a charge or charges against the accused should be recorded. However it is the subsequent investigations that eitherCONFIRM the earlier charges or disclose new ones. However, where the arrest is led by personnel from the intelligence agencies, they simply inform their victims that they are being taken away because of orders from "above'. In some cases the Police delibarately threaten suspect by slamming more graver charges so that they yield into patting with bigger bribes in order to buy their way out.

5. Police caseFILE
Immediately a complaint is recorded in the CRB or a suspect is apprehended and brought to the police station, a case file is oppened up in respect of that matter. It is allotted a file number that corresponds with the CRB number. The Officer in Charge of Criminal Investigations assigns one of his detectives as the In-charge of that particular case. Such a case file may contain the charge sheet, the statements from the complinant, suspect and witnesses, investigation reports, documentary exhibits etc depending on the stage of investigations/inquiries. The assignment of which detective handles which case is done by the OC CID. In most cases it is detectives bring better financial returns to the assigning authority who are always assigned 'fat' files. In the ongoing 156 billion shillings theft saga, there is no way an investigation report by detectives could have reached the DPP without the case file and a case file cant have two contradicting investigation reports.

6.  Pre-trial role of the DPP 
The Directorate of Public Prosecution (DPP) has a constitutional mandate to oversee all prosecution of criminal cases in the country. It has stations throughout the country manned by Resident State Attorneys (RSA) who are Lawyers. They are assisted by State Prosecutors who are paralegals. Until around 2001, its the Police that used to prosecute criminal cases in Magistrates Courts but State Prosecutors were recruited and Police withdrawn from prosecution. In Kampala, while the DPP head office takes care of the High Court, its field offices are established at every Magistrate's court. Whenever the Police commences criminal proceedings against any suspect, they are required to forward the file to the RSA for perusal, legal opinion/advice and sanctioning of the charges. When the RSA is satisfied with the charges against the suspect, he sanctions the charges by way of signing and stamping on the charge sheet.  Once the sanctioned file is returned to the Police station, the suspect is supposed to be taken to court. If the RSA is not satisfied with the charges and the general course of investigations, he/she may direct that the charges be amended. In the later instance, the RSA is supposed to be mindful of the 48 hours constitutional requirement if the suspect is in Police custody whereby he may order the release on police bond depending on the nature of the case. In some instances the DPP has abused such powers i.e in January 2015 the Police in Sembabule arrested the Ntusi LC III Chairman on suspicion of murder. While at the court cells awaiting formal charging before a Court in Masaka, armed men forcefully set him free and fled with him. Later the RSA Masaka who had sanctioned the charges confirmed that the DPP had sent a telephone message for the suspect not to be charged. The suspect has strong connections with the regime's powerful Minister Sam Kuteesa. The Police and family of the victim were gravely frustrated and since then the suspect has never been charged.

7.  Police bond
This is when the Police releases a suspect before taking him to court on condition that he reports back as inquiries continue. It comes about when the Police finds less merit in the allegations or the case file has delayed with the RSA. It is onlyAPPLICABLE on minor offences and is supposed to be given for free of charge. Once the Police is ready to take such suspect who had earlier been released on bond, it will cancel his bond, rearrest him/her and produce him before court. Police Bond is the major source of bribery for the Police. Innocent victims are blackmailed and criminal suspects let off the hook resulting into rampant acts of mob justice.

8.  ChargeSHEET
It consists of accusations against the suspect thus the law contravened and the brief particulars of the offense. The charge sheet is prepared and signed by the O.C CID and sanctioned by the State Attorney. In some offences like abuse of office, its only the DPP himself to sanction sanction the charge. A charge sheet is prepared in two copies - one copy remains on the Police case file while the other one goes to the court file. A poorly drafted charge sheet is referred to as being defective and if not rectified can lead to the case being dismissed in court. However, a defective charge sheet can be rectified by way of amendment. Amendment of a charge sheet also involves adding or removing accused persons and charges from the charge sheet. Where investigations have not yet explicitly disclosed the most appropriate charge, a provisional charge called a Holding Charge can be preferred for the time being.  CID officers and RSAs connive to prefer lesser charges in terms of gravity that dont match with the facts of the case. In such a scenario robbery can become theft, assault causing grievous bodily harm can become common assault like was the case with the WBS TV journalist who was brutally beaten by the Police Commander. Given the nature of injuries that the victim sustained, it was a clear case of attempted murder but the Police commander was favored with a lesser charge.  In some cases suspects or their agents by pass the CID and approach the RSA with a bribe so that he presses the CID to prefer a lesser charge. When the CID learn of such scenarios, they clash with RSA. Some RSAs, Magistrates and Police investigators are upright conduct their business professionally but they risk being isolated. 

9.  CourtFILE
When the Police takes an accused to court for the first time, the first step is to register the case in the Court's criminal registry. SuchREGISTRATION involves presenting only a copy of the charge sheet that was sanctioned by the State Attorney. Court opens up a file containing only the charge sheet and allocates it a court file number. When ever an accused person appears in court, the proceedings recorded in respect of his case become part of the that court file's contents. During the trial in case of any documentary evidence tendered both the defence and prosecution and admitted by court also become part of the court file contents.  The contents of the court file keep accumulating as the case progresses and may include copies of other court papers like duplicate bail forms, payment receipts, exhibit slips, photocopies of sureties' ID if any, bonds (passport and land titles) deposited in court in respect of bail etc. Court Clerks who are responsible for the custody of court files solicit money from accused with promise of tampering with court records but in most cases they act as go-between accused or their agents and the trial Judge or Magistrate.

10.  Plea taking 
Is when a accused is produced before a court of competent jurisidiction and charges are read to him/her. In court the accused is expected to whether the charges are true or not. Usually an accused is produced before a court which has powers try the alleged offence. However, for purposes of expediency, even if the court has no jurisidiction an accused can be brought before it for simply reading to him the charges whereby he is told not to say anything (not take plea) because that court has no powers over the matter. In such a situation that court simply remands the accused to prison pending production before a competent court for plea taking. Where court has powers and the accused accepts the charges (pleads guilty) to the charges, he is convicted and sentenced but when he denies them (pleads not guilty), court will ask the prosecution about the progress of investigations. If the the investigations are not yet complete, prosecution will inform court so and pray for an adjournment. It the inquiries are complete, prosecution will inform court so and seek for fixing a hearing date to be fixed by court so that the case can be heard. If the case is bailable, court will inform the accused of his right to bail and if he fulfills the bail conditions, he will granted bail as he continues to attend court from outside prison. Where an accused appears for the first time before a court that has no powers over his alleged offences, he will simply be remanded (sent to prison) pending plea taking before a competent court. An accused can not be granted bail by a court that has no powers to try his case thus he/she has to apply in the higher court. In capital offences where accused has appeared before and been remanded by a court with no powers, once the investigations are complete the accused is committed to the High Court for trial. In capital offences qualifying for bail is only after a mandatory period of time except in extreme circumstances. However, in instances where money has changed hands, CID and Prosecutors connive to delay completion of investigations so that that mandatory period clocks and the accused is automatically granted by court and may have to disappear.

11.   Bail
In Uganda bail is a constitutional right. All offences are bailable only that in some offences bail is open at any stage while in others its only possible after a certain mandatory period of 180 or 360 days as the case may be. Bail is granted upon fulfilment of certain conditions depending on the gravity of the offence and the personal circumstances of the accused. Bail money remains the property of the accused no matter whether he/she is acquitted or convicted. It is recoverable upon presentation of a receipt that had been issued duringDEPOSITING of the bail money in court. Some bail is non cash - only payable if the surities fail to fulfill their undertaking. Bail is a major source of bribery for prosecutors and Magistrates. Around all court premisses there are found people for hire commonly referred to as 'professional sureties' who are always standing surety for strangers upon a fee. Prosecutors and Magistrates know them and in most cases such accused granted bail under such circumstances simply disappear. When an accused fails to fulfill the bail conditions and is remanded usually for 14 days, in between upon payment of a bribe, a production Warrant is issued by the Magistrate to the Prison authorities so that he is produced before court for fresh bail application. Even where an accused has been convicted and is on remand in prison but he appeals against the conviction, he may apply and be granted bail pending appeal.

12.  Hearing of a criminal case
When investigations are still going on, the accused keeps appearing in court after every 14 days for mention of the progress of his case. Hearing of a criminal case commences once investigations are completed. It involves the Prosecutor adducing evidence before court to prove the accused guilty. It is at this stage that the trial Judge or Magistrate gets to hear of the details of the alleged offence for the first time. Both the prosecutor and the accused adduce evidence to prove their case. Witnesses are called to testify, exhibits tendered, and expert witnesses like Doctors, Auditors, Handwriting experts etc give their expert opinion. Prosecutors seek for witness summons from court and give the to Police detectives to look for witnesses. In some cases, the detectives acting alone or in connivance with the prosecutor deliberately dont bother to look for witnesses so that the case collapses. This is what transpired in the Col Bantariza trial in the court martial. In extreme cases vital evidence and testimony is deliberately not brought forward by both the investigators and Prosecutors so that a the prosecution case is weakened in favor of the accused. In most upcountry stations, it is very common for Magistrates, Prosecutors and police detectives to meet every evening in pubs so as to map out schemes for squeezing bribes from criminal litigants.

13.  Dismissal for want of prosecution
This is when the trial court dismisses a case before hearing it because the prosecution has without convincing reason the case has overstayed thus prosecution is not showing interest in pursuing the matter. Courts make this decision in consideration of the accused's right to a speedy trial. However, such dismissal is is done before an accused is put on his defence, the charges can be reinstated by the Prosecution for a fresh trial. Such a scenario arises out of a deliberate scheme by the  Police CID acting alone or in connivance with the prosecution. Here, investigations will have become indefinite and in some cases witnesses are not summoned at all so that the case collapses. This is what happened in the on going 165 billion shilling pension scam. In some cases, the CID does not sent the case file to the prosecutor whenever the case comes up for mention in court and every time the Prosecutor keeps informing court that the Police file is not available and once it becomes monotonous, court dismisses the case. However, in other instances such criminal proceedings will have been commenced simply to inconvenience the accused. This is called malicious prosecution and is common with politically motivated, business rivalry and revenge motivated criminal proceedings.

14.  No case toANSWER
After prosecution has presented all its evidence and closed its case during the hearing, it can not introduce fresh evidence. At this stage, its court to determine whether prosecution has made out a primafacie case (on the face of it) against the accused to warrant him/her to state his defence. If so, court rules that the accused should state his defence (put on his defence) and if not the accused is exonerated and set free on grounds of no case to answer. In the later instance, the DPP can bring back the case by instituting fresh criminal proceedings based on the same facts. Here, in some cases the CID acting alone or in connivance with the prosecutor will have deliberately left out vital evidence during the investigations or during trial. In a few cases the evidence will have been simply concocted as was the case with the Dr Besigye trial for rape and treason.

15.  Case toANSWER
This is where the accused has been put on his defence and court has weighed the evidence produced by the prosecution made a finding of a prima facie case having been made by the Prosecution requiring the accused to state his defence.

16. Prosecution and defense cases
Prosecution case refers to the criminal pleadings  in support of finding the accused guilty as charged. Prosecution team is led by the Prosecutor and the CID and composed of all the prosecution witnesses. However where stakes are high as was the case in the trial of Jackie Nsenga, the Deputy Director of CID testified for the defense because the accused is an in-law to the IGP Kayihura. The defense case is led by either the accused or if represented by his Lawyer and the defence witnesses.

17. Withdraw of charges
Once an accused is charged before court, its only the DPP personally who can withdraw charges by writing to the trial court that proceedings against the accused have been discontinued (nole prosecue). He need not state reasons for doing so and it is only possible at any stage of proceedings before an accused is convicted. However, in the Court martial such powers lies with useveni and that is why he so much prefers to take his political opponents to the court martial.Commando raids by the regime to reverse court decisions have also been witnessed where stakes are high.

18. Acquittal 
When the trial court evaluates the evidence and arguments presented by both the prosecution and the defense and finds that the later outweighs the former the accused is exonerated and set free. Once acquited, such charges arising from the same facts will never be brought up against the accused. However the state has the option of appealing the acquittal. Where the accused has strong connections or the state has no interest, the matter ends there.

19. Bail pending appeal
This is when an accused is found guilty, convicted and sentenced but he appeals the sentence in a higher court. While waiting for the hearing of his appeal, he can in extreme circumstances apply for bail as was the case for former Permanent Secretary Kashaka who was convicted for abuse of office. As Ugandans and the donor community went to sleep, he was granted bail on 'medical grounds' because he is strongly connected to the military regime.

20. The role of the DPP head office
It oversees all criminal prosecutions throughout the country. In so doing it can call for any Police case file from any of its field stations more especially where a complaint has been lodged over the conduct of prosecution or investigation. In such a scenario, prosecution does not stall but instead a duplicate file is made out as the original goes to the DPP. In stations within Kampala, Mukono and Jinja, State Attorneys from the head office take over prosecution of some cases in the High Court. This is how the recently slain State Attorney came to specialise in high profile terrorism related cases.

Conclusion
The current criminal justice system in Uganda is fine. Where there are upright investigators, Prosecutors and Magistrates/Judges, justice can be done fairly and expeditiously. There is no law requiring that for an accused person to be produced in court, investigations should have been completed. Instead, a suspect can be arrested and produced before any court within a few hours, charged and remanded or given bail (depending on the circumstances of the case) as investigations are continuing. If need be why cant courts operate on Saturdays so that in some cases suspects are deliberately arrested on Friday afternoons so that they spend the entire weekend in police cells before they appear in court on Mondays. This practice has the effect of breeding bribery for police bonds in order to escape long weekend hours of detention and is also used in malicious arrests by the Police.

Because the military regime has no will to fight corruption and abuse of office, some of the different players in the country's criminal justice system subscribe to its ideology thus cadres. Theft of public resources and primitive accumulation of wealth is a regime's political ideology of creating a middle class. It is evident that there is more corruption and abuse of process in the lower magistrate courts than the higher courts who are mainly preoccupied with civil cases and criminal appeals. Some of the accused who get off the hook are regime cadres who enjoy protection at all costs. Selective prosecution is the official policy to deal with political dissent and the need to tame law enforcement agencies has been top on the agenda. No doubt, just as it has been the case with the Police and the judiciary, the regime must have recruited majority of the Prosecutors into its pay roll. The disbandment of the traditional Police intelligence unit - the Special Branch and the current proliferation of criminal investigations outfits every other day is designed to take care of the above schemes. 

Because the ruling military dictatorship is bent on arresting and detaining people for ill motives, torturing them in ungazzetted places, detaining without trial, it is not comfortable with the two constitutional provisions that guarantee the rights of an accused who is presumed innocent until proved guilty by a competent court. It is therefore misleading for the executive to advocate for the amendment of the law and it should be resisted at all costs. Good enough, the Chief Justice has vehemently warned against towing that line. 

INFORMATION IS POWER

Posted by Uganda - A Change of Guards! a

Viele GruBe

Robukui

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