The call by the judiciary upon security operatives to respect court decisions and suspect’s bail rights in light of capital/grave offences has endlessly fallen on deaf or even non-existent ears.
Even if this has not created a publicly seen rift between the two institutions, various circumstances indicate a growing frustration on the side of the judiciary.
At the opening of last year’s law year, the Chief Justice Bart Katureebe condemned the manner in which security operatives re-arrest suspects who have been granted temporary release or even acquitted within court premises. He was quoted; “I don’t condemn the re-arrest but the manner in which they are arrested within court premises.”
The call came after five who had been acquitted of offenses relating to masterminding of the 2010 Kampala Twin bombings were immediately re-arrested right within court premises and driven off to Nalufenya detention center over terrorism related charges.
In about ten months after the chief justice’s call upon security operatives, there was a recurrence on 7th November 2017 when suspects who had been charged with the murder of fallen AIGP Andrew Felix Kaweesi got re-arrested by gun wielding, non uniformed men just minutes after they had been granted bail.
The scuffle that ensured during the arrest was in full light of public view as one of the suspects, Ali Senfuka shouted for help, but to no avail.
This re-arrest brought to light another frustration within the justice system. The judges soon revealed they were not happy with re-arrests of suspects who had been granted bail over unclear new charges.
In a symposium held on the 15th November 2017 under the theme; “Human Rights in the Context of Criminal Justice; Rethinking the Workings of Justice process in Uganda”, These related such manner of arrest an abuse of the suspect’s right to bail.
As one of the judicial participants Justice Kutosi Wangutusi, the head of commercial court then was quoted adding ‘The situation is even worsened when people are released on bail but forcefully rearrested over supposedly new charges after failure to produce evidence in the old charges.”
Four months down the road, the nation witnesses another re-arrest of Dr Kalule Ismael, a former 2010 Kampala Twin Bomb suspect.
In a scuffle right at the court cells of the international crimes division of the high court which doubles as the anti corruption division of the high court, security non uniformed men grabbed Dr. Kalule amidst helpless screams immediately after he was released by the High Court Judge Moses Mukiibi at the division.
The court premise had been awash with security detail of all sort and at all corners right within and in the bushes surrounding the court.
The re-arrest was not only an outright disregard of previous calls from the judiciary but also a disregard of the warning by the presiding judge who granted Dr. Kalule bail.
Justice Mukiibi in his ruling raised various observations arguing that it’s not constitutional that people accused of terrorism cannot be released on bail and neither is it the position for people arrested by the anti-terrorism unit or any joint security organs.
In light of the fact that players in the criminal justice system play different roles, the judge asked that whether one is playing its role by use of weapon or pen, none should exercise too much power in total disregard of the roles of the other organs.
He read; “some public officers carry out their roles with the aid of weapons. Others do so with the aid of pens.”
The judge also demystified the existence of orders from above for as long as they violate the powers of the constitution.
“For example, there is no above who can give orders to overrule and render nugatory the orders of any competent court”
He further read; “it is only bad or uninformed officers in the security organs who flagrantly disrespect court orders. We should all bow our heads to the governance of the rule of law.”
A very detailed and informative call to the security operatives yet in their large numbers as they surrounded the court premise, non paid attention nor respect. Another call fallen upon deafened or nonexistent ears.
Dr. Kalule was grabbed while the world, his old mother and lawyer Evans Ocheng watched with no possible saving solution.
Not the caution alone, Justice Moses Mukiibi also raised a frustrating issue with the re-arrests of bailed out suspects. Justice Mukiibi noted that just like the courts of law have the discretion to release a suspect on bail, the state also has all liberty to object to a suspect’s application for bail with proper evidence.
The justice system also seems frustrated that state and security operatives usually take their objection for granted, producing no proper evidence proving the allegations why they don’t want a suspect to be released yet go ahead and disrespect court decisions.
Actually most of the grounds for grant of the bail for Dr. Ismail Kalule were based on absence of proper evidence from state proving reason for him to be denied.
Factor two reads; “the absence of any evidence that the applicant may cause lawlessness to society if released on bail.”
Factor three; “absence of any evidence from the respondent that there is a risk of the applicant absconding”
Factor four; “absence of any evidence that the applicant has any likelihood of interfering with the course of justice”
Factor seven; “absence of any evidence that applicant is violent or threatens violence against anyone”
Such was the kind of other reasons which the judge considered while granting the bail.
Another aspect that was disregarded by the security operatives who re-arrested Dr. Kalule were the eight very stringent bail terms that court had set.
Justice Mukiibi had granted a twenty million non cash bail and bonded all sureties with 10 million each in case Dr. Kalule absconded from court.
Besides reporting to the court registrar twice every month, depositing his passport Dr Kalule was ordered to be humble and co-operate with security who were expected to approach him from time to time as part of surveillance.
The judge had also ruled; “the applicant shall not engage in any rhetoric or make addresses to any congregation or any other way cause public excitement, but can lead fellow Muslims in prayer using humble and sober language”.
Kalule was also to be monitored by security operatives in case he had to carry out any in religious matters and was to restrict visitors to his place of residence as well as identify all visitors to security personnel in case asked to do so.
If security operatives don’t heed to pleas by the judiciary a temple of justice and calls from other stakeholders not only in line with criminal justice but in light of the rule of law, then the judiciary as a will continue to nurse frustration as;
Suspects are re-arrested within their premises of the very courts that have released them. Not only courts disrespected but the bail rights of suspects violated in the very premises where they are supposed to be upheld.
Suspects will continue to be re-arrested for new charges with investigations not yielding even in the charges for which they are being bailed out.
State will continue to vaguely do investigations unchecked since they know they don’t have anything to prove in courts of law after all, the suspects against whom they have to prove offenses and objections against bail applications will definitely be dragged back into custody whenever they are released.
The public’s confidence in the courts of law will also grow weary, since the courts may not have the power to protect their rights at the arms of gun wielding security operatives.