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Justice Delayed, Justice For Sale: An Open Letter To The Chief Justice

By Barnard Banturaki

My Lord, I have just been reminded that your time as the Chief Priest in Uganda’s Temple of Justice is nearly over—and I am happy that that is so. Not happy because you are departing, but because, as Mandela said; “when a man has served his nation, that man deserves his rest”.

After revisiting the constitution of Uganda, I am now almost certain that your impending retirement is purely a function of your biological age viz the constitutional upper age limit of 70.

In this particular regard, my conclusion is backed by an apparent probability; and I therefore need not reach absolute certainty. Yes, an apparent probability because, other than hitting “an age rock”, nothing else assures me that you would have all the same retired.

My Lord, more recently, you found no animosity in the hidden rationale for the removal of upper age limits from the constitution of Uganda—although for purely different causes!

Against that painful background, my citizen’s question is; Do you personally feel any urge to have Article 144(1)a of the constitution amended or repealed to remove the  constitutional age limit of 70 years from the office of the Chief Justice; so as to enable you consolidate the gains of your leadership into some form of steady progress?

My Lord, by the mere fact that you are retiring due to proven old age, it means you have had a chance to compare different service regimes of Chief Justices of Uganda. Yes. I say so because, at 70, you are arguably older than the Republic of Uganda!

Therefore, as you prepare your handover process, I have just one question for you; what kind of judiciary are you hoping to bequeath to the new chief justice? Let us even put it more bluntly. Will you be leaving behind a better judiciary than you inherited from your predecessors?

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In the deepest part of your heart, do you think you are leaving a better judiciary than the best judicially ever witnessed (by you) in this country before? Are you leaving a system where an average Ugandan who approaches the Temple of Justice in quest for justice walks away with a basket full of justice?

At the end of the of the day, these are the greatest questions that will tell whether or not your tenure as Chief Justice of Uganda has been a success; or whether you are going down as one other elderly lawyer that merely sat and rolled in the office chair of the chief justice!

My Lord, I know that you have a whole list of things that you are willing to parade and or present as your achievements.

However, I take the humble pleasure to assure you today that if your tenure as chief justice of Uganda wont leave an average Ugandan more assured of finding justice in the courts of law that you and your principal judge are mandated to supervise, I would be less than candid to deceive you that you have succeeded.

Not long ago, I visited Luzira prison (Murchison upper). I specifically wanted to know the average length of time criminal suspects spend on remand before the conclusion of their cases/trials. While there, I discovered several shocking facts.

The most shocking discovery was that of a man who had spent 10(ten) years on pre-trial remand; and still, his case was not being heard! As I still marveled in shock, I was reminded that someone else had spent 14(fourteen) years on remand!

My Lord, I broke into teary laughter when I was later told that some people were on remand for periods longer than the legally prescribed maximum sentences that would be imposed on them if they were convicted. Nothing mocks justice more than this!

For the purpose(s) of verifying the veracity of the saddening stories told by the numerous criminal suspects I interacted with across various detention zones, I further interacted with several prison warders; and the worst was confirmed.

I shall not waste much of your precious time detailing to you the various saddening tales told to me; but I humbly beg to put to you my general findings, in a few lines.

My Lord; Yes. There are numerous criminal suspects who have spent more than 1(one) calendar year on remand detention; but for one reason or the other their trials have not commenced.

Yes. There are many criminal suspects who have spent more than 5(five) calendar years in remand detention and their cases are far from being concluded.

Yes. There are numerous criminal suspects who have been on remand detention for periods longer than the legally prescribed custodial punishments for the offenses they are charged with.

Yes. There are numerous criminal trials in various courts of law that have dragged for a period of 5(five) or more years without completion.

My Lord, I have deeply regurgitated the applicable laws of Uganda and I have no doubt that what is happening in this country is a blatant misuse of the remand authority of criminal courts. The way the remand function of criminal process is being used has no place in a democratic and or progressive society.

My Lord, both Articles 28(1) and 126(2)b of the 1995 constitution of Uganda demand the administration of justice in a time-sensitive manner; always ensuring that  justice is not delayed.

I hasten to add that the rationale behind the constitutional requirement of a quick trial for criminal suspects is that, in all cases, innocent persons should never be unnecessarily subjected to the rigors of lengthy trials for offenses they didn’t commit.

Yes. This safe guard is benched against the presumption of innocence which is entrenched under Articles 28(3)a and 44(c)  of the constitution of Uganda; and which forms the fulcrum of the right to a fair hearing.

My Lord, therefore, in view of the law and the general findings I have highlighted above, I have just a few lawyers’ questions for you;

Don’t you think a remand detention which drags for 1(one) or more calendar years without the commencement of the hearing amounts to a detention without trial; and accordingly contravenes Article 43(2)b of the constitution which demands that there shall be no detention of any person without trial?

Don’t you think a remand detention which drags for a period of 3(three) or more years derogates the Presumption of Innocence and accordingly contravenes Article 28(3) of the constitution.

Don’t you think a remand detention which drags for a period of 5(five) or more years amounts to cruel and or in-human treatment of the criminal suspect and derogates Article 24 of the constitution.

Don’t you think a remand detention which drags for a period longer than the legally prescribed custodial punishment for the offense charged is cruel and or in-human; derogates the presumption of innocence; and accordingly contravenes Articles 24 and 28(3) of the constitution.

Don’t you think a criminal trial which drags for a period of 3(three) or more years without completion amounts to a slow and unfair hearing; derogates Article 28(1) of the constitution; and is accordingly null and void under Article 2 of the constitution.

My Lord, this delayed course of justice is not isolated to the criminal process; and I will tell you a personal experience that summarizes what is happening in other courts, including the Constitutional Court of Uganda.

At the height of the 2012 constitutional conflicts between the NRM political party and her rebel MPs over whether they could lawfully depart from caucus positions of the party, I was one of the humble Ugandans that transmitted certain questions to the constitutional court regarding the impasse.

We were capriciously denied audience. The case was blatantly denied a hearing date. Two months ago (in 2019), we were served a hearing notice in the same petition! Hahahahahaha. Yes. 7(seven) years after the petition was filed; and 7(seven) years after many letters were written to the head of the constitutional court and were flatly ignored.

My Lord, never has a lawyer felt a mockery of justice as what came into my heart when the hearing notice was served on me. Yes. When the matter was called for hearing, I decided that I would not go there! Go there to do what? Tell me!

My Lord, for 7(seven) years, a constitutional petition was denied a hearing date until every question therein raised was effectively overtaken by events! So I go there to do what?

This is happening everywhere.

In the judiciary that you supervise, cases are called for mention and are adjourned for two years! When the two years have passed, the humble advocate and his client appear in court only to be told that the trial judge is on his/her annual leave! The cases are then adjourned for another one year. If you were the advocate what would you tell your client?

My Lord, do you consider that in your tenure as Chief Justice of Uganda you have performed to the letter and spirit of your constitutional mandate?

As chief justice of Uganda would you, as you retire, stand with your head high in the belief that from the time you became Chief Justice to-date the average speed of the administration of justice by both criminal and civil courts has increased?

But there is a more puzzling question in the administration of criminal justice, especially with regard to capital offenses. My Lord, by what mechanism are some criminal cases called almost as fast as they take place while others are not heard for nearly a decade?

I will use a few murder cases to illustrate this;

In 2008, Godi Hussein Akbar killed his wife. The case was expeditiously handled; and by 2013 and 2015 respectively both the court of appeal and Supreme Court of Uganda had concluded the appeals! Within seven years, all courts had handled the case.

In 2013, when Juvenal Nsenga was murdered by his wife at their home, a trial was mounted and completed in record time! By the end of 2014, the murderer was already convicted. The case was heard and concluded in almost one year!

When Tom Nkulungira (Tonku) killed Brenda Karamuzi in 2010, we had a quick criminal trial and by August 2011 judgment was already delivered. By November 2015 the appeal was already decided in the Court of Appeal of Uganda;

When Kasiwukira was killed in October 2014, justice didn’t take long to be administered; by mid 2019, the first appeal was already concluded in the court of appeal of Uganda.

Finally When Mohamed sebuwufu and his colleagues gruesomely killed katusabe at pine, a criminal trial was mounted and completed. Also in record time.

The examples shown above are a microcosmic projection of the administration of selective justice by the judiciary in favor of the rich and powerful.

They are a clear indication that members of our benches are actually able to conclude criminal trials in one year; but choose to do so selectively, leaving many cases completely unattended to.

In the judiciary that you supervise, some criminal cases are branded “high profile”. I don’t know whether by the amounts of money paid somewhere or by the connections of the families of the victims. In the result, in those cases, justice is administered without delay.

My lord, by what legal tool do courts of law treat some murder cases as “high profile” and others as “low profile”? Why what justifiable process are some murder cases prioritized over others? Do some victims of homicides lose two lives so much that they deserve justice more than others? Why do other murder cases take 15 years without being touched while others are successfully handled by three courts of record in just 3(three) years?

My Lord, during your tenure as Chief Justice of Uganda, delayed and selective administrations of justice have increased ten fold. In fact, one wonders why you and your attendant Principle Judge Hon. Justice Mr. Dr. Yorokamu Bamwine should not end your respective judicial careers by openly advocating for the repeal of Article 126(2)a from the constitution of Uganda.

Yes. This is the part of the constitution that requires that in adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, ensure that Justice is done to all irrespective of their social or economic status.

My lord, I precisely don’t know how much time you have left, but I also know that if you still have any vestige of love for justice left in your heart, then Your Lordships can still do something or at least start something that we shall build on to cleanse the judiciary of its original sins.

But If nothing is urgently done by yourself and your Principal Judge to prevail over the judiciary, the police and the state prosecutors to ensure that all criminal suspects are equitably prioritized to ensure that justice is done to every criminal suspect in a relatively short time; you should both assume your positions in history and apologize to the nation.

My lord, you must be wondering whether you have the mandate to give remedies to this state of affairs. Relax!

My Lord, I have deeply considered the provisions of Article 133 of the constitution of Uganda.

Yes. I have done so because I wanted to know if the office of the Chief Justice of Uganda has the constitutional mandate to take radical measures and make it strongly known to the powers that be that the cause for justice is not a matter to twist and bend at the pleasures of the DPP, the government in power or the rich and influential.

Under Article 133(1)a, it is the constitutional duty/responsibility of the Chief Justice of Uganda to head the judiciary; and to specifically administer and supervise all courts in Uganda. For the ease of your reference, article 133(1)a reads as follows;

  1. Administrative functions of the Chief Justice.
    (1) The Chief Justice—(a) Shall be the head of the judiciary and shall be responsible for the administration and supervision of all courts in Uganda; and (b) …………………………………….

Under Article 133(1)b of the constitution of Uganda, you have a wide latitude to issue orders and directions to the courts necessary for the proper and efficient administration of justice.

 

  1. Administrative functions of the Chief Justice.
    (1) The Chief Justice—(a) ……………………; and (b) May issue orders and directions to the courts necessary for the proper and efficient administration of justice.

Since this is an administrative mandate, allow me to humbly assure you that, the wide constitutional mandate given to your office under Article 133(1)b of the constitution of Uganda allows you to, without consulting anyone on earth, radically give Uganda a final gift and accordingly direct and or order that;

Any Ugandan who has spent 1(one) or more calendar years in remand custody without the commencement of his/her trial be unconditionally released from detention irrespective of the nature of the offenses or evidence against them.

All criminal suspect(s) in Uganda who have been on remand detention for periods longer than five years be unconditionally released from detention irrespective of the nature of the offenses, stage of the cases, and or evidence against them.

All criminal suspect(s) in Uganda who have been on remand custody for periods longer than the legally prescribed custodial punishment(s) for the offenses they are charged with be forthwith unconditionally released from detention and also be discharged from trial.

All criminal trials that have dragged uncompleted for a period of five or more years be forthwith stopped; and all criminal suspects who have been on trial in all such cases be unconditionally discharged from trial.

All criminal suspect(s) in Uganda who have spent more than 180 (one hundred and eighty) calendar days on remand custody be forthwith released on bail, irrespective of the nature of the offenses or evidence against them.

This sounds radical, but desperate situations require radical solutions.

My Lord, given the scanty time left on your tenure, you cannot achieve any good except by adopting radical methods, as long as the law allows those radical methods.

My Lord, before I say bye, I wish to highlight one other disturbing aspect of the criminal justice system of Uganda; the original sin of corruption!

I want say that perhaps things would be better if some sections of the judiciary, especially the lower benches, weren’t using the remand function of criminal justice as a business tool.

In the judiciary that you supervise, more often than not, judicial officers simply remand people, not because the offenses charged are not bailable; or not because the suspects don’t merit bail. They remand suspects simply because the other party wants the suspect remanded and has influenced the decision! This is common in offenses of a political nature as well as those involving the rich.

My Lord, in other numerous cases, other judicial officers will remand people in order to break their spirit and create a window for their loved ones to cough some money.

Yes. In the judiciary that you supervise, it is no longer a secret that in almost all criminal processes, bail is for sale! Don’t bore me with all these billboards printed using taxpayers’ money deceiving the unsuspecting public that justice or bail is for free!

My lord, in this market place, the humble advocate finds his hands tied.  We are in a results bending practice. Because of the realities of practice, advocates have been left no other option but to cooperate and bill professional fees that are high enough to cater for “the oiling of the wheels of justice”!

What baffles me is that all this seems normal. What else can we do? Trying to speak a lot of English may earn your client another 14(fourteen) days on remand. By the time the matter comes back to court, the client will have hired another advocate!

Yes. To preserve our instructions, we are left with no chance but to play to the forces of demand and supply! Yes. In the judiciary you preside over, justice is for sell. In the judiciary, which you preside over, corruption is institutionalized. It is no longer corruption. It is known as, “oiling the wheels of justice”!

My Lord, with you as Chief Justice, leaving this culture in full life will not be a mere failure. It will be evil!

For God and my country.

Banturaki Bernard Paddy, Advocate

legalcareuganda@gmail.com

 

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