Buturo ban is unconstitutional
In normal circumstances, the Police ban on the public display of Kizza Besigye’s posters would not be particularly shocking.
Joe Oloka Onyango
In normal circumstances, the Police ban on the public display of Kizza Besigye’s posters would not be particularly shocking.
Commonsense and Police work have never been good bedfellows. However, I was especially stunned because the Uganda Police Force is for the first time in its history being led by a lawyer — my good friend Maj. General Kale Kaihura, who should know better.
Although I have tremendous respect for him, in the short time of Kale’s leadership, the Police have engaged in a spectacularly high number of illegal actions. But that must be a story for another day, because the banning of the posters pales into insignificance when compared to Hon. Dr. Nsaba (‘Chemical Ali’) Buturo’s ban on the reporting, discussion and demonstration over the various court cases and other issues relating to Besigye. The only action not prohibited in the guidelines is the act of thinking about the case!
Despite the wide-ranging scope of the ban and the minister’s blatant misinterpretation of the Constitution, Buturo’s guidelines are a complete misreading of the rule against sub judice they are supposedly addressing. They are also blatantly unconstitutional and unenforceable.
In the first instance, what does the sub judice rule mean? Sub Judice in Latin simply means ‘awaiting judicial determination’ and is used to indicate that a particular case or matter is being considered in a trial or by a judge. The origins of the rule relate to the relationship between Parliament and the Courts in England and reflect the doctrine of separation of powers. Originally, members of the British Parliament were not allowed to bring a motion, debate or question over a matter that was before court. The object was to ensure that there was no undue influence on the court proceedings by another arm of the State and in the reverse, to ensure that Parliament was not attempting to act like a court. Over the years and following the realisation that strict enforcement of the rule was impossible, the rule has been modified several times, particularly to allow the Speaker of the House to exercise his or her discretion when deciding whether or not to permit discussion of a court case.
It is important to point out that the rule was always applied with much less vigour to the media for the simple reason that the right to know is of fundamental importance in a functioning democracy. In any case, the media exception recognises that judges are of such a calibre as to not be easily swayed by public comment and opinion.
Buturo’s guidelines have the effect of completely overturning the right to free expression guaranteed by the Constitution. What his guidelines mean is that a newspaper cannot publish a letter, an opinion piece or an interview of any person speaking about issues relating to the trial under threat of losing their license to print and to publish. If you dare, you literally perish! The same applies to radio stations that host the famous bimeza: speak out and be spiked!
Secondly, the guidelines are an attempt to take away the power over sub judice pronouncements that belongs exclusively to the Speaker of Parliament or to the Courts of law. This is an unashamed assault on the independence of the Judiciary and the autonomy of Parliament. If the Speaker feels the rule is being violated by Parliament, he or she can simply stop debate on the matter.
Similarly, when a court feels that the rule has been breached, it can take appropriate action against the culprit, especially through the charge of contempt of court. That is why it is the judge in charge of the murder trial of Aggrey Kiyingi and not a a minister who is investigating whether Ashraf Ssemogerere’s play on ‘Murder in the City’ violates the sub judice rule.
But not only are the guidelines bad in law, they are also practically unenforceable and reflect a complete failure on the part of the Government to understand the strides that have been made in information technology today. Does the ban extend to the Internet? For example, The New Vision Internet discussion board already has 147 letters on the topic, and hundreds more can be expected to come in before the trial is over. Moreover, The New Vision is only one of several papers in the country. Furthermore, it is possible to send out thousands of online viewpoints and opinions on the case to the members of the Judiciary and the world at large; can the Hon. Minister stop these? Secondly, does or can the ban extend to foreign newspapers, radios and television stations, of which there are several that respectively sell or broadcast to Uganda, although from outside the country. Finally, Mr. Minister, does the ban extend to academic institutions?
Indeed, in solidarity with the protest called by the Uganda Law Society (ULS) and in defence of the right to free expression, I am announcing that a public debate on the events surrounding the arrest and illegal detention of Rtd. Colonel Dr. Kizza Besigye will take place on Monday, November 28, 2005 at 2:00 pm East African Standard Time (Prompt!). The venue is the Faculty of Law, Makerere University. Of course, the Hon. Minister and the Police are cordially invited to come. J. Oloka-Onyango HURIPEC, Makerere University Ends
In normal circumstances, the Police ban on the public display of Kizza Besigye’s posters would not be particularly shocking.
Commonsense and Police work have never been good bedfellows. However, I was especially stunned because the Uganda Police Force is for the first time in its history being led by a lawyer — my good friend Maj. General Kale Kaihura, who should know better.
Although I have tremendous respect for him, in the short time of Kale’s leadership, the Police have engaged in a spectacularly high number of illegal actions. But that must be a story for another day, because the banning of the posters pales into insignificance when compared to Hon. Dr. Nsaba (‘Chemical Ali’) Buturo’s ban on the reporting, discussion and demonstration over the various court cases and other issues relating to Besigye. The only action not prohibited in the guidelines is the act of thinking about the case!
Despite the wide-ranging scope of the ban and the minister’s blatant misinterpretation of the Constitution, Buturo’s guidelines are a complete misreading of the rule against sub judice they are supposedly addressing. They are also blatantly unconstitutional and unenforceable.
In the first instance, what does the sub judice rule mean? Sub Judice in Latin simply means ‘awaiting judicial determination’ and is used to indicate that a particular case or matter is being considered in a trial or by a judge. The origins of the rule relate to the relationship between Parliament and the Courts in England and reflect the doctrine of separation of powers. Originally, members of the British Parliament were not allowed to bring a motion, debate or question over a matter that was before court. The object was to ensure that there was no undue influence on the court proceedings by another arm of the State and in the reverse, to ensure that Parliament was not attempting to act like a court. Over the years and following the realisation that strict enforcement of the rule was impossible, the rule has been modified several times, particularly to allow the Speaker of the House to exercise his or her discretion when deciding whether or not to permit discussion of a court case.
It is important to point out that the rule was always applied with much less vigour to the media for the simple reason that the right to know is of fundamental importance in a functioning democracy. In any case, the media exception recognises that judges are of such a calibre as to not be easily swayed by public comment and opinion.
Buturo’s guidelines have the effect of completely overturning the right to free expression guaranteed by the Constitution. What his guidelines mean is that a newspaper cannot publish a letter, an opinion piece or an interview of any person speaking about issues relating to the trial under threat of losing their license to print and to publish. If you dare, you literally perish! The same applies to radio stations that host the famous bimeza: speak out and be spiked!
Secondly, the guidelines are an attempt to take away the power over sub judice pronouncements that belongs exclusively to the Speaker of Parliament or to the Courts of law. This is an unashamed assault on the independence of the Judiciary and the autonomy of Parliament. If the Speaker feels the rule is being violated by Parliament, he or she can simply stop debate on the matter.
Similarly, when a court feels that the rule has been breached, it can take appropriate action against the culprit, especially through the charge of contempt of court. That is why it is the judge in charge of the murder trial of Aggrey Kiyingi and not a a minister who is investigating whether Ashraf Ssemogerere’s play on ‘Murder in the City’ violates the sub judice rule.
But not only are the guidelines bad in law, they are also practically unenforceable and reflect a complete failure on the part of the Government to understand the strides that have been made in information technology today. Does the ban extend to the Internet? For example, The New Vision Internet discussion board already has 147 letters on the topic, and hundreds more can be expected to come in before the trial is over. Moreover, The New Vision is only one of several papers in the country. Furthermore, it is possible to send out thousands of online viewpoints and opinions on the case to the members of the Judiciary and the world at large; can the Hon. Minister stop these? Secondly, does or can the ban extend to foreign newspapers, radios and television stations, of which there are several that respectively sell or broadcast to Uganda, although from outside the country. Finally, Mr. Minister, does the ban extend to academic institutions?
Indeed, in solidarity with the protest called by the Uganda Law Society (ULS) and in defence of the right to free expression, I am announcing that a public debate on the events surrounding the arrest and illegal detention of Rtd. Colonel Dr. Kizza Besigye will take place on Monday, November 28, 2005 at 2:00 pm East African Standard Time (Prompt!). The venue is the Faculty of Law, Makerere University. Of course, the Hon. Minister and the Police are cordially invited to come. J. Oloka-Onyango HURIPEC, Makerere University Ends