The Foundation for Human Rights Initiative (FHRI), an independent, non partisan, not for profit national human rights advocacy group, would like to congratulate you upon your recent re-election as the President of the Republic of Uganda.
Your Excellency, on 1st May 2011, you addressed the Nation in response to the events of Friday 29th April 2011 where a number of Ugandans lost their lives, others were variously injured and many suffered and still suffer adverse effects from exposure to tear gas. This occurred when the Uganda Police Force in exercising their mandate to protect lives and property in Uganda moved to quell the demonstrations as people protested against the perceived brutal arrest of Dr. Kiiza Besigye. In your address, you highlighted the need for strengthening the law governing bail arguing that perpetrators of crimes such as murder, defilement and rioters should not be granted bail. In addition, you mentioned that you would “work” with the Director of Public Prosecution (DPP) to ensure that rioters who admit their mistakes and report to the security forces would be pardoned.
Your Excellency, while we agree with you that the lives and property of all Ugandans must be protected, your propositions however would run counter to several provisions of the highly acclaimed 1995 Constitution of Uganda whose promulgation your Government championed namely:
- In Article 1(3) which stipulates that ‘All power and authority of Government and it’s organs derive from this Constitution, which in turn derives its authority from the people who consent to be governed in accordance with this Constitution.’
- Article 20(1) which states that; ‘Fundamental rights and freedoms of the individual are inherent and not granted by the State.’
- Article 20(2) which states that: ‘The rights and freedoms of individuals and groups enshrined in the Constitution shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.’
- Article 28(3) (a) which provides that: ‘every person is presumed to be innocent until he or she is proven guilty or pleads guilty.’
Your Excellency, what this therefore implies is that:
i) These and other clauses of the Constitution read together impose a duty on your Government to promote, protect and respect the rights of all the people of Uganda and to safeguard their wellbeing as opposed to using the law to deny them their inherent rights and freedoms as guaranteed by the the 1995 Constitution.
ii) The right to bail as enshrined under Article 23(6) of the 1995 Constitution of the Republic of Uganda, is a fundamental right which can neither be wished away, outlawed or applied selectively. This provision, has been variously interpreted by a number of Judges in several decided cases including but not limited to Justice Twinomujuni (JA) in the case of Joseph Tumushabe V Attorney General Constitutional Petition No. 6 of 2004 who took to pains to explain that it originates from Article 28 (3) of the same Constitution which enunciates the ‘presumption of innocence’. Unless Your Excellency wishes to amend the Constitution to do away with this presumption, the DPP cannot do much about the law on bail. Besides, Article 120 (6) clearly states that: ‘The DPP shall not be subject to the direction or control of any person or authority.’
As such, the outright denial of bail for certain offences would constitute a fundamental breach of human rights which accord equal protection of the law to all individuals as highlighted under Article 21(1) of the 1995 Constitution of Uganda
iii) Pardoning alleged perpetrators of human rights violations will encourage impunity and promote disrespect for the rule of law and/or may force otherwise innocent accused persons to confess guilt in order to avoid inhumane conditions in some of our places of detention. In addition, it will deter Police from conclusively investigating crimes and bring the actual culprits to book.
iv) “Working” with the DPP to ensure that alleged human rights violators are pardoned if and when they admit their wrong(s) would compromise the independence of the DPP in the exercise of his duties as enshrined under Article 120(6) of the 1995 Constitution of Uganda.
v) Lastly your Excellency, to add rioting to the list of the category of offences that should not be granted bail, assumes that all persons who may choose to peacefully demonstrate and voice opinion on matters affecting them are criminals. This will have the net effect of deterring Ugandans from exercising their fundamental human right to freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition as guaranteed in Article 29 of the Uganda Constitution and ably settled by their Lordships in the case of Muwanga Kivumbi versus Attorney General (Constitutional Petition No. 9/05)
As the Fountain of Honor of our Nation, FHRI would like to respectfully appeal to you Your Excellency, to guarantee that;
- The Executive arm of Government respects and upholds the rule of law and that all organs of the Government are independent and free from interference.
- The Government ensures that all criminal cases are dully investigated, prosecuted and that individual criminal responsibility is apportioned impartially without undue regard to an accused person’s political inclination. This will go a long way in eliminating impunity and will deter the wanton abuse of human rights by state and non- state actors.
- The Government ensures individual criminal responsibility by eliminating impunity for offenders so as to deter human rights violations by state and non – state actors.
- The independence of the Judiciary, the DPP, Police, Prisons and indeed all agencies within the criminal justice system is guaranteed to ensure that the right to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law, which right is also declared to be inviolable by Article 44 of the Constitution is respected by the State.
- The right to freedom to assemble and to demonstrate together with others peacefully and unarmed as guaranteed in our Constitution is not unnecessarily restricted and that whatever restrictions that are imposed should be justifiable in a free and democractic society that Uganda purports to be.
- During the legislative process, proposals for law reform are made in good faith and that public participation is strengthened in order to garner public support and acceptance.
For God and My Country.
Together We Can Make a Difference
Foundation for Human Rights Initiative (FHRI), Human Right House, Nsambya, P.O Box 11027 Kampala, Tel: 0414-510263/498, Email: email@example.com