Magara conviction: So what for the bereaved families?

By Bob Roberts Katende

The clock is ticking 9.30a.m and the mood at the High Court is getting tense. People continue troop into the courtroom and its bursting.  Others crane their necks through windows to have a glimpse of what is about to happen.

Its a judgement against Lt. Ramathan Magara, a special police constable who shot and killed two FDC party supporters Gideon Makabayi and Kavuma Vicent in a procession at Bulange in Mengo during the presidential election campaigns in 2006. Magara is also accused of shooting and maiming a third person, Haruna Byamukama, at the same scene. The bullet wounds have since condemned Byamukama to a wheelchair.

Although at the commencement of the trial the charges were murder and attempted murder, at the reading of the judgement they were reduced to manslaughter whose maximum sentence is life imprisonment. However the judge has the discretion not to give the maximum sentence. That’s the option the trial judge Wilson Kwesiga preferred in the Magara case.

Having evaluated both evidence by the prosecution and the defence, the judge ruled that Magara never shot the deceased in self defence as claimed by the accused. “He shot in the air twice and the crowd scattered. This means he had the opportunity to escape but he chose to shoot in the crowd thus killing two people on spot.” However the judge was quick to add that Magara was provoked into the shooting. In this case the judge reduced the homicide to manslaughter.Â

The judge accordingly sentenced Magara to seven years on each count of manslaughter and acquitted him of attempted murder for lack of sufficient proof. The two sentences will be served consecutively, meaning that Magara will serve 14 years in jail if he does not appeal or if the appeal court upholds the sentence.

However according to the Uganda Prisons establishment, if a convict does not commit any other criminal offence or offence of indiscipline within the first six months, the length of the sentence year is reduced to nine months instead of 12. Therefore if Magara does not commit any of the fore-mentioned offences in the first six months, he will be spared three months each year making it 42 months in total. This means he will get a waiver of three and a half years off his actual jail term. At 55 years old today, he will come out after 10 years and a half in prison, aged 65 and a half.   Â

Families of the deceased can now use the current judgement to file a civil case against Magara personally to seek compensation. “They still have a chance to file a civil suit against either the attorney general or Magara himself,” a lawyer who preferred anonymity said. He however added that the bereaved families need to first ascertain whether Magara has property to attach in case he fails to pay the compensation.Â

For maimed Byamukama, the court ruled that the prosecution failed to prove that the injuries he suffered on that fateful day were occasioned by bullets fired by Magara. However lawyer Robert Lubega says Byamukama too can institute civil proceedings against Magara personally to seek compensation. The civil case is easier to prove than a criminal case because the latter requires a higher degree of proof which is “beyond reasonable doubt” while the standard of proof for the former based on “a balance of probability.”Â

Haruna had also sued the then Rubaga Resident District Commissioner in 2007. Considering that the office of the RDC is part of the civil service, the case is likely to be against the attorney general. Byamukama also has to “prove that Magara at the time was acting in his line of duty as an agent of the state,” counsel Lubega says.

If Byamukama succeeds, then the costs and damages will be borne by the government. Magara becomes the first state operative to be convicted of a criminal offence of election violence. None of the many state operatives who have committed election violence crimes since 1996 has ever been prosecuted. A soldier who drove into a crowd of FDC opposition supporters during election campaigns in 2001 in Bweyogerere, Kampala, has never been arrested.

Some observers say the Magara precedent could be a precursor to individual criminal responsibility otherwise known as vicarious liability which government and security officials had hitherto escaped. It’s has been the government, and in fact the taxpayer, that has been paying for their culpability.

Since 2003, the government has been ordered by Uganda Human Rights tribunal to pay 1.5 billion shillings for crimes state/security officials committed against civilians. “The offender does not feel the pinch of his actions,” says Ruth Ssekindi of Uganda Human Rights Commission tribunal.Â

A new bill by a coalition of human rights organisations is about to be tabled in parliament seeking to make state officials to be individually accountable for their crimes against people. According to the Prohibition and Prevention of Torture Bill 2009, the government will no longer be held liable for crimes committed by its agents. It also provides: “A superior public official is liable for an offence committed by a subordinate under his or her effective control and authority… as a result of his failure to exercise control over the subordinate, where the acts concerned were activities that were within the effective responsibility and control of the superior.”

However the bill says that the compensation of the victims lies solely on the shoulders of the perpetrator. “This will make the perpetrators feel the pinch,” says Nduru Patricia, an official at Uganda Human Rights Commission. But until then the pinch is still felt by the taxpayer.