Hours after the state dramatically tied them to a spate of murders in Greater Masaka region last week, members of parliament Allan Ssewanyana and Muhammad Ssegirinya found themselves behind bars in Kitalya prison – accused of three counts of murder and attempted murder.
Richard Birivumbuka, the Masaka Resident Chief State Attorney, told court that the suspects murdered Francis Kizza, Sulaiman Kakooza and Tadeo Kiyimba and attempted to murder Ronald Ssebyato of Ssetaala village in Masaka City.
In timing, tone and substance, the charges raised eyebrows and stirred grief and anger among opposition ranks.
In a video, moments before his formal arraignment before a magistrate’s court in Masaka, a teary Muhammad Ssegirinya, the Kawempe North MP, heaped the blame for his woes on his political opponent who has petitioned court to overturn his victory, Sulaiman Kidandala. He said the state should have brought another trumped-up charge against him other than murder. He said Kidandala connived with state agents to frame him for murder after his petition collapsed in the High court last week.
“Because they failed to defend their election petition they decided to cook up this charge to put me in jail. How can you do this, Kidandala, because you and your team of security organs want the Kawempe North seat? If you want
the parliamentary seat, take it... Why do you want to take my life too. Take the seat. I know why I am in this situation...its politics; it’s the Kawempe North seat. There’s nothing else. The men are so desperate to have the seat even if it means killing me... I am really overwhelmed... This charge is too grave, it’s too big...”
Joel Ssenyonyi, the MP for Nakawa West and spokesman of the opposition National Unity Platform, said in a tweet on September 9, “Remember when police displayed these guns pretending to have got them from Hon Robert Kyagulanyi’s hotel room in Arua in 2018? They might soon display machetes saying they got them from the homes of Hon Ssewanyana and Hon Ssegirinya. This country has so much drama!!!”
Allan Ssewanyana and Muhammad Ssegirinya are not the first MPs to battle the charge of murder. On April 20, 2005, two MPs from the opposition Forum for Democratic Change, Ronald Reagan Okumu and Michael Nyeko Ocula, were arrested by police. Okumu was the party’s deputy executive coordinator and MP for Aswa, Gulu district; Ocula was MP for Kilak, also in Gulu.
Okumu had been a harsh critic of a bill that removed presidential term limits and allowed Museveni to stand for a third term as president.
“The arrest of these opposition MPs smacks of political opportunism,” said Jemera Rone, researcher in Human Rights Watch’s Africa Division. “Holding them without trial would prevent them from campaigning before the election. The government must promptly provide for a fair trial or release them,” Rone said then.
The two politicians were charged with the February 2002 murder of Alfred Bongomin, council chairman of Pabbo sub-county, Gulu, and were then remanded to Luzira prison in Kampala. A year later on January 9, 2006, Okumu and Michael Ocula were acquitted of the murder of Alfred Bongomin.
Interviewed for a comment on Monday, September 13, 2021, Michael Ocula Nyeko said their arrest was very unfortunate.
“That arrest was very unfortunate. The damage it caused to my record can never be repaired because it is now permanently in the archives of court. But that’s the world. One just has to forgive those who plan evil on others, but I will never forget,” Ocula said by telephone.
Ocula ditched FDC and crossed to the ruling NRM in 2015. He was eventually appointed as an ambassador to Egypt.
“All I can say is that the arrest actually increased our popularity and in the 2006 elections, I got 18,000 votes and the person who followed me got 7000 votes. Yet in 2011, I went through with a margin of only 750 votes,” Ocula said.
WHY CAPITAL OFFENSES?
Capital offenses such as treason, kidnapping, rape, and murder over the years, have become the state’s preferred charges of choice against many of its harsh critics. Though the charges usually don’t provide an easy path to a conviction – government however, has used them to good effect to keep its opponents longer in jail and on trial.
Over the years, Human Rights Watch has documented how the government has used capital charges to detain political opponents for prolonged periods of time, often for more than a year. Rarely have any of these cases been brought to trial.
The arrests, according to Human Rights Watch, also highlight concerns about Uganda’s law on bail and remand. The Ugandan constitution provides that suspects preliminarily charged with a capital offense— such as treason, kidnapping, rape, and murder—may be held in detention for 360 days before they are entitled to bail. That requirement, however, has been altered since.
Bail is now granted or denied at the discretion of the presiding judge. The law is intended to give the police and prosecutors time to investigate the case. However, HRW says the law requires no showing of any evidence to connect the accused to the crime until the completion of the criminal investigation, for which there is no time limit.
Consequently, as long as investigations are ongoing, suspects can be held longer without bail before a court is required to make any assessment of the strength of the evidence against them. In most cases researched by Human Rights Watch, the police had not completed their investigations in a year.
In almost all cases that Human Rights Watch has investigated in Uganda, the prosecution has taken at least a year to complete the investigation. In the case of Okumu and Ocula, Internal Affairs Minister Ruhukana Rugunda reportedly stated in parliament on April 21, 2005 that the prosecutor had completed inquiries into the matter. The following day the prosecutor asked the magistrate for an adjournment for “further investigation” of the offense that happened three years ago, increasing the possibility for the two MPs to be detained for a prolonged period.
According to a Citizens Handbook written by the Foundation for Human Rights Initiative (FHRI), “The right to bail is a fundamental right guaranteed by
Article 23 (6) of the 1995 Constitution of the Republic of Uganda. Its basis is found in Article 28 of the same Constitution, which states that an accused person is to be presumed innocent until he/he is proved or he/she pleads guilty. It also provides that an accused is entitled to a fair and speedy trial before an independent and impartial court or tribunal established by law. These two principles are part of the right to a fair hearing which is declared to be inviolable by Article 44 of the Constitution.”
“The idea is that a person presumed to be innocent and who is entitled to a speedy trial should not be kept behind the bars unnecessarily long before trial. This is the rationale of Article 23 (6) of the Constitution.’ [Justice Twinomujuni: 2004].”
However, FHRI says, “The right to bail in Uganda has remained controversial since 2005. While the Constitution recognises the right of an accused person to be released on bail, and the powers to release conferred on the Courts of Judicature, this power has many times been challenged or questioned by different stakeholders. There is, therefore, a need to create awareness and enhance shared understanding of this right in order to ensure that the rights of pre-trial detainees are not in any way compromised.”
For offences like murder and treason, which are only triable by the High court, the accused is charged in a magistrate’s court, but he or she is not allowed to plead to the charges. The Magistrate informs him/her about the right to apply for bail in the High court and remands him/her. The detainee can then file an application for bail at High court where the judge hears it and takes a decision on whether to grant or deny him/ her bail. When the prosecution finalises its investigations, the accused person is committed to the High court for trial.”
Erias Lukwago, the lawyer of the two MPs told journalists last week that they are going to file an application in the High court seeking the release of his clients on bail on medical grounds. The lawyers filed the application on Monday, September 13th.
Lukwago alleges that his clients are framed by the regime for political scores; something he said will complicate the pursuit to apprehending the real killers in Masaka.
“We adduced evidence to police that on the night of 23rd August which they are talking about, Hon Ssewanyana was out of the country in Japan. How could he have at the same time travelled to Kabonero to execute the murders? It is ridiculous. Be as it may, we’re going to apply for bail, we’re going to work throughout the night and by dawn tomorrow, we’ll be ready with our papers and hopefully, we’ll be heard because health-wise our clients are not well. They have some health complications which might worsen while on remand.” Lukwago said.
“The issue of mysterious murder has been complicated by the events we’re witnessing. When you change the narrative now that these murders are associated with politics, then you’re making it more complicated. You’re compounding the whole matter. Are they now telling the nation that Ugandans are that gullible to believe that kind of crap that these are the masterminds? So we’re really worried about the safety of Ugandans.” Lukwago added.
Treason has also been used to good effect, largely to intimidate, muzzle and keep political opponents behind bars. A week after MPs were arrested in the West Nile district of Arua in August 2018, and spirited off into military detention where they were tortured, lawyers and opposition leaders denounced the treason charges brought against them as political persecution.
Robert Kyaggulanyi aka Bobi Wine was charged with treason then. The lawyers told The Observer then that the state loved to slap trumped-up treason charges for pure political harassment. Julius Galisonga a human rights lawyer, said that the desired objective is to keep people in prison as a punishment before conviction.
“Ordinarily with capital offences there is a period of time you must remain on remand before even the hearing of the case can start or applying for bail; this is what those who prefer such charges are after,” Galisonga said.
On August 13, MPs; Robert Kyagulanyi Ssentamu a.k.a Bobi Wine, Francis Zaake, Gerald Karuhanga, Paul Mwiru, Kassiano Wadri and 30 others were arrested in the heat of the Arua municipality by-election.
Bobi Wine and the others were viciously attacked and taken by the Special Forces Command (SFC), the elite force which protects the president. Save for Kyagulanyi who was charged in the military court-martial for unlawful possession of military hardware and Zaake, the other 33 appeared in the Gulu chief magistrate’s court. A charge of treason was read out against them. On August 23, 2018, Kyagulanyi was also charged with treason in the same court.
WHY GOVERNMENT LIKES IT
Treason charges have been preferred against many real or perceived opponents of Museveni ever since he shot his way to power in 1986. It became a pet charge with the emergence of Col. (rtd) Dr Kizza Besigye as a formidable opponent in the last 18 years.
Besigye was first charged with treason in 2005, barely a month before the acrimonious 2006 general election. The former Forum for Democratic Change (FDC) founding leader was accused together with 22 others, including his brother Musasizi Kifefe, of belonging to the shadowy People’s Redemption Army (RPA).
Musasizi died in prison. Ten years later in 2016, Besigye was again arrested and remanded for close to six months for swearing himself in after the 2016 elections he claims he won.
FDC man Michael Kabaziguruka, then Nakawa MP who himself is still battling two treason cases; one in the magistrate’s court and the other in the General Court Martial, agrees that treason charges are being abused for political reasons.
“I was arrested in 2012 and charged with treason but as we speak, I have never been committed to the High court for trial. But before they could even finish prosecuting that case, I was arrested again and this time charged in the military court martial on the same grounds. The president claimed I wanted to kill him,” Kabaziguruka said.
When he was first arrested, Kabaziguruka was locked up for four months. Likewise, in 2016, he was held in Kigo prison for four months until High court judge Yasin Nyanzi granted him bail.
“The head of state said publicly that I tried to assassinate him; that the UPDF will not release me. In the military when the head of state makes such a statement, you don’t expect Gen Andrew Gutti [GCM chairman] to give me a fair hearing. The purpose of this charge is really to put you out of circulation and cause inconveniences,” Kabaziguruka said.
THE LEGAL OPINION
Interviewed in 2018, Laudislaus Rwakafuuzi, a human rights lawyer who has defended many against treason, said then, “Treason is a grave offence... it is very hard to get bail hence keeping your opponents out of the way through the courts. They will tell you that it’s the court that has remanded you yet actually it’s the executive that has remanded you,” Rwakafuuzi said.
Dr Livingstone Ssewanyana, the executive director of Foundation for Human Rights Initiative, observed that because of the seriousness of the charge, it has a chilling effect on the individual and his or her entire network.
“It is intended to subdue that person such that he is no longer seen to assert him/herself,” he said.
“The charge should be used sparingly. Actually, we have a Constitutional court petition that will be heard in September challenging the powers of the DPP to charge somebody who is expressing him/herself with treason; that sort of charge amounts to abuse of office,” Ssewanyana said.
He pointed out that treason cases take a lot of time before the state either loses interest or one is acquitted.
“It effectively puts the individual under the custody of the state and it’s hard to get bail because with such a case, you can only get a mandatory bail after 180 days. The charge doesn’t only disfavour an individual but puts him/her at the whims of the state,” Ssewanyana said.
All three men said the state doesn’t prefer treason charges with intent to convict but, rather, to secure victory over an opponent. Lawyer Julius Galisonga said because the standard of proof is set at beyond reasonable doubt, requiring irrefutable evidence, 95 per cent of the treason cases either suffer a stillbirth or end up in acquittals.
“Treason involves actions that are not known to very many people unless one person confesses that indeed he had engaged in treasonous activities, it is very hard to prove,” Galisonga said. The burden of proof is on the state to prove beyond reasonable doubt all the elements of the offence. The accused can even opt to keep quiet throughout the trial. He doesn’t have to prove his innocence.
It is for this reason, the lawyer added, that government prefers to take people before military courts where orders from the commander in chief could override evidence.
“It is the court martial that can only convict people on such cases but their ruling would also be overturned on appeal in the civil courts,” Galisonga opines.
WHAT IS TREASON?
Section 23 of the Penal Code Act, the collection of laws setting out criminal offences in Uganda and their punishment, states that a person commits treason when he/she; (a) levies war against the Republic of Uganda; (b) unlawfully causes or attempts to cause the death of the President or, with intent to maim or disfigure or disable, unlawfully wounds or does any harm to the person of the President, or aims at the person of the President any gun, offensive weapon, pistol or any description of firearm, whether it contains any explosive or destructive substance or not; (c) contrives any plot, act or matter and expresses or declares such plot, act or matter by any utterance or by any overt act in order, by force of arms, to overturn the government as by law established.
Additional material incorporated from Human Rights Watch report.