The Elephant in Ugandan courtrooms

Why has no court pronounced itself on Kakwenza’s torture case?

Kampala, Uganda | IAN KATUSIIME | During the annual judges’ conference held in the last days of January, Kakwenza Rukirabashaija had already become an international phenomenon as he narrated his torture ordeal at the hands of Ugandan security operatives. There was outright condemnation of Kakwenza’s torture from the public, activists, media and even from Uganda’s donors in Europe and U.S.

Kakwenza, a novelist, was detained and tortured in December last year after he sent out tweets about Lt. Gen. Muhoozi Kainerugaba, President Yoweri Museveni’s son and also commander of the Ugandan Land Forces. Kakwenza was charged with offensive communication.

However from the reports at the week-long judges’ conference, there was not even one mention of torture. On the opening day of day the conference, in Chief Justice Alphonse Owiny-Dollo’s entire speech, there was no mention of torture.

Weeks before the conference, Kakwenza’s lawyer Eron Kiiza, had filed a writ of habeas corpus at the High Court seeking to compel authorities to produce his client before court. A writ of habeas corpus is usually filed to enable the person in detention to challenge that custody. After being prompted by The Independent, Kiiza said no Ugandan court pronounced itself on Kakwenza’s torture case.

Kakwenza has since fled to Germany where he is at the German PEN Center attending a Writers-in-Exile programme. It was made for writers who face persecution in their home countries. Stella Nyanzi, another Ugandan writer is attending the same programme where the two have struck a camaraderie with a shared scorn for President Museveni and the Ugandan government.

The harrowing scars of torture on Kakwenza’s body elicited an outpouring of empathy and outrage for the novelist and the state respectively. However Ugandan courts have been evasive if not diversionary when it comes to Kakwenza’s case- one that has sparked reckoning on the excesses of Ugandan state authorities.

On Feb. 8, before Kakwenza fled, the Buganda Road Chief Magistrates court rejected a request by Kakwenza to have his passport returned so that he could fly and pick an award from Germany. The same court also declined Kakwenza’s plea to seek for treatment abroad and advised him to look within the country’s available hospitals. This was besides the constitutionally guaranteed bail that Kakwenza was initially denied.

The presiding chief magistrate; Douglas Singiza was on the spot as Kakwenza’s case became a very political issue. Singiza is a former law lecturer at the University of Western Cape, South Africa.

One of his former students, Gad Arthur, tweeted his thoughts on the Chief Magistrate’s positions. “I am saddened by the developments of Kakwenzi’s case mostly because the presiding Chief Magistrate Dr. Douglas Singiza taught me International Humanitarian Law (IHL) at Law School.”

As the case went on, some wondered how the trial could go on with Kakwenza’s visible marks of torture.

As the judges’ conference wound up, there was more evidence that torture was the last thing on the judges’ mind. On Feb.1- the last day of the conference, Ugandan Judicial Officers Association, an umbrella for judges and magistrates released a statement titled ‘Condemnation of the Conduct of Mr. Isaac Ssemakadde and Mr. Male Mabiriizi’. The judicial officers were not happy with the social media comments of the two lawyers on matters arising out of court cases they were handling.

The actions of the wider judiciary seemed to be designed to defeat the Kakwenza case. Reports suggested that at the time Kakwenza was freed, the Solicitor General had written to the Chief Magistrates Court seeking a certified copy of proceedings that directed the unconditional release of the novelist.

When The Independent asked Jameson Karemani, the spokesperson of the judiciary, on why no Ugandan court has made any pronouncement on torture, he had a quick cop-out: “We rule on what has been filed before us. You mention a case of Kakwenza’s torture that has been filed and I will tell you.”

The position of the courts is almost at odds with that of the constitution of Uganda.

Article 24 of the Constitution states; “No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment.” It is reinforced by Article 44 “Notwithstanding anything in the Constitution, there shall be no derogation from the enjoyment of the freedom from torture and cruel, inhuman or degrading treatment or punishment.”

In 2012, Ugandan law makers passed a law on torture; Prevention and Prohibition of Torture Act 2012. No less clear, it states; “An Act to give effect, in accordance with Articles 24 and 44(a) of the Constitution, to the respect of human dignity and protection from inhuman treatment by prohibiting and preventing any form of torture or cruel, inhuman or degrading treatment or punishment; to provide for the crime of torture; to give effect to the obligations of Uganda as a State Party to the United Nation’s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and other related matters.”

Judicial activism

The inertia by courts on some matters often sparks debate on the role of judicial activism. According to the U.S.-originated Black Law Dictionary, judicial activism is a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.

Ugandan jurists have also written extensively on the principle of judicial activism and applied it. In 2017, The Observer reported that the Supreme Court Justice Lillian Tibatemwa-Ekirikubinza said courts should look beyond the legality of an in issue for the greater good of society by virtue of their position as guardians and trustees of the Constitution. Justice Tibatemwa-Ekirikubinza delivered the message while urging Ugandan Civil Society Organisations to be more creative and proactive in their pursuit of justice for all.

In the case of Bushoborozi Eric versus Uganda where the special case in the application was that Bushoborozi could not be released by prison authorities without a Minister’s order, the presiding judge Batema N.D.A ruled that the law on Minister’s orders under Section. 48 of the Trial on Indictment Act is such a law that should be “construed with modifications, adaptations, qualifications and exceptions to bring it in conformity with the constitutional provisions on judicial powers and the right to a fair and speedy trial before an independent and impartial court established by law.”

Justice Batema added “This is a case which calls for judicial activism on the part of judicial officers to breathe life into the law in articles 126,128 and 274 of our Constitution.” He added, “The Constitution allows our courts to be innovative and introduce changes that will give the law the most correct interpretation and effect that serves the ends of substantive justice.”

Back to the Kakwenza case; Pheona Wall, the president of the Uganda Law Society, told The Independent, that the courts ruled to give him bail but added that judicial activism also applies when a matter is before the courts.

Wall however said that the courts came out clearly on the case of Francis Zaake, the Mityana Municipality MP who has suffered numerous beatings at the hands of police and the army arising out of political skirmishes. She added that there a lot of precedents where courts have been very clear on torture.

Wall added that the Human Rights Enforcement Act and the Evidence Act delegitimise prosecutions where evidence has been obtained through torture. She added that confessions during torture are supposed to be disregarded. “In fact if a court is informed of torture, it is duty bound to halt prosecutions until the torture allegations have been heard and ruled upon.” However in spite of the glaring evidence of Kakwenza’s torture, his trial went on until he fled into exile.

In August last year, the High Court ordered the government to pay Zaake UgShs75million for the torture inflicted on him while he was in state custody in 2020. Zaake sued the Attorney General alongside a number of police officers for the torture he endured while he was in several detention facilities around the country.

Judicial avoidance

As debate on torture rages on in the country and the impunity of its perpetrators, courts and judges remain on the spot over their actions. A year ago, lawyer Ssemakadde, while discussing a Constitutional Court judgment accused judges and courts of “judicial avoidance”.

The court had ruled that it was unconstitutional for judges to be appointed to the Executive stating that it was a contravention of the principle of separation of powers enshrined in Chapters Six, Seven and Eight of the Constitution.

The ruling was a result of a petition filed by the late Bob Kasango who was challenging his prosecution by then Director of Public Prosecutions (DPP) Justice Chibita.

“The constitutional court is guilty of judicial avoidance. This petition was filed in 2016 and now it is 2021 and now the petitioner is dead. It is of no sequence to him,” Ssemakadde said.

The absence of a substantive court position on the grisly torture of Kakwenza easily lends credence to Ssemakadde’s indictment of the courts as an entity guilty of judicial avoidance.

Instead, Ssemakadde who has made a name in public interest litigation is the one having run-ins with the courts. First was his condemnation from judicial officers and now he is fighting for the rights of another lawyer, Male Mabirizi, who is in trouble for riling judges with his social media attacks against them.

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