SIRâ€” I wish to comment on Prof Oloka Onyangoâ€™s article â€œButuro ban is unconstitutionalâ€ published on November 25. Let me state that it is for parliament to make the law; it is for the courts to interpret it; and it is for the executive to execute it. Sub judice refers to what is of judicial
Therefore, according to that law, as long as a matter is sub judice all discussion is prohibited elsewhere. The sub judice rule has existed for a long time, but was confirmed by two resolutions of the British House, of July 23, 1963 and June 28, 1972.
Two principles do inform this law, namely the rights of parties in legal proceedings should not be prejudiced by discussion of the case, and courts not to be distracted from exercising their functions. On the other hand, the public has a constitutional right to discuss any matters it pleases.
Since our judicial system is inherited from the British, let us consider a recent debate over the issue. The House of Commons released a Standard Note No. SN/PC/1141 on August 21, 2003 in relation to the issue. The Note cited a ruling by Sir David Steel (1998) of the Scottish Parliament when the sub judice rule applied. He concluded that, â€œâ€¦we all must have regard to the interests of justice, including the interests of all parties.â€ We realise that debate is still going on concerning this law.
The actual problem is between the two principles at hand. The ensuing battle over two major principles at play is representative of the nature of human law and the ambiguity of human justice. Turning to Onyangoâ€™s comments we ask ourselves why the law of sub judice?
He seems to insinuate that judges are of such an extra-human calibre without capacity of being swayed by public opinion. It appears some of our learned fellows have never appreciated the power of the media. If we doubt the mediaâ€™s power let us ask what has created Besigye? The learned professor also argues that Minister Nsaba Buturo was attempting to usurp the powers of pronouncements over sub judice.
He calls this, â€œan unashamed assault on the independence of the Judiciary and the autonomy of Parliament.â€ This goes to the heart of the old debate over power among the big three. Let us restate that it is for parliament to make the law; it is for the courts to interpret it; and it is for the executive to execute it.
I wonder how otherwise the executive would do it in this case. The nature of human law, hoping Prof. Onyango agrees with me, is that it is inherently ambiguous because human nature is so. He refreshed us on the perennial challenges of human law but the spirit in which he did it is betrayed by the last remarks of blatant contempt of the executive.
To call a public debate over an issue that is banned is to court disaster; and even if the executive does not react radically as I hope it does, we shall have realised what material Onyango is made of.
He shoots himself in the foot when he pre-empts the results of court ruling by pronouncing, â€œâ€¦the arrest and illegal detention...â€ of Besigye. Who can any longer consider the respectable professor less ill-motivated and more unbiased than Buturo?
Onyango shoots himself in the foot!