Amin Before Public Opinion Court
Jul 23, 2003
News that former president Idi Amin is critically ill has sparked off a frenzied debate. The debate has several lawyers to it. There are those debating the politics of his return, and others debating the legality of it.
By Chibita wa Duallo
News that former president Idi Amin is critically ill has sparked off a frenzied debate. The debate has several lawyers to it. There are those debating the politics of his return, and others debating the legality of it.
Moral, social and humanitarian aspects of his return are also being considered. The other issue that has been muddled up about his return is whether he should be returned dead or still alive. Unfortunately, Amin himself is reportedly unable to participate in this debate because he is in a coma. Would he, himself, have wanted to return home or be returned home to be buried among his ancestors in Koboko or not? The answer to this can only be given by the man himself. Alternatively, those who have been by his side all these years should be able to give a pointer as to what his wishes are. Of course if he wrote a Will, then this should contain all these details. After all, a Will comes in handy for such times as these!
If Amin had been an ordinary mortal, these questions would not have interested or engaged the public much. His immediate family would have had to wrestle with these questions and resolve them quietly and privately. But Amin is a former President of Uganda who ruled Uganda from 1971, when he overthrew Milton Obote, to 1979 when the Tanzanian army with sections of Ugandan exiles drove him out of power. Not only is he not an ordinary Ugandan, he was not an ordinary President. His regime is accused of causing the death and disappearance of hundreds of thousands of people.
The people aggrieved by his regime, have all along been advocating his extradition so that he faces justice. Many of these, therefore, may not think that sickness or death should offer an escape for the man they believe should be brought to account for his regimes many heinous crimes.
The nature of criminal law, however, is such that it is committed by an individual. It is that individual who forms the intention and it is that individual, sometimes in concert with others, who executes the crime. The punishment therefore, has to be prescribed and meted out against that individual who masterminded or ultimately committed the crime.
There is no vicarious liability, as such, in criminal law. Therefore, there can be no punishment on behalf of another. This also means that there cannot be post-humus punishment or trial, for that matter. That is why murder-suicides usually end any attempt at investigation, trial and conviction because there is nobody to try and convict. Being in coma also exempts him from standing trial. Obviously he does not have the mental or physical capacity to stand trial. Somebody must be possessed of all his mental capabilities to be able to stand trial. That is why even someone of unsound mind cannot stand trial, as such.
Hence insanity can be a defence to many crimes because one is not sufficiently possessed of all his faculties to make logical decisions. A person who cannot, or is not in a position to, plead guilty or not guilty, is ultimately unable to answer for his crimes. A person in coma, a dead person and an insane person are all in this category. Some people have argued that a post-humus trial should go on all the same, for the record even if a notorious criminal is dead. That record, however, would be one-sided because it would not contain the accused persons’ testimony. Such a trial therefore would be null and void.
In the case of Amin, the pertinent question to ask those advocating post-humus trial would be; why was the man not brought to trial while he was still alive and kicking? Why wait for him to go into coma before remembering that he had some questions to answer? This is not to say that he was a saint. Just to suggest that maybe the country had reached a quiet understanding to let sleeping dogs lie. If so, then that understanding should be left to continue until the man is called to meet his Maker whereupon, he will have gone beyond the reach of our human criminal law, as already pointed out.
Whether his remains should be brought back for burial among the ancestors, or not, may not be so much of a legal question as it is a political and social one. The argument of amnesty under the Amnesty Act does not arise because the Act does not cover the Amin period. The amnesty only applies to those engaged in or engaging in war or armed rebellion against the Government of the Republic of Uganda since 26th January 1986. The crimes Amin is accused of committing happened between 1971 and 1979.
Some have suggested that President Museveni should exercise his prerogative of mercy in the case of former President Amin. This, however, is not how this prerogative is exercised. There has to be a trial, conviction and sentence before the President can consider exercising his prerogative of mercy, as happened in the case of Nassur Abdallah. There cannot be forgiveness without conviction, as far as the prerogative of mercy is concerned.
Ends
News that former president Idi Amin is critically ill has sparked off a frenzied debate. The debate has several lawyers to it. There are those debating the politics of his return, and others debating the legality of it.
Moral, social and humanitarian aspects of his return are also being considered. The other issue that has been muddled up about his return is whether he should be returned dead or still alive. Unfortunately, Amin himself is reportedly unable to participate in this debate because he is in a coma. Would he, himself, have wanted to return home or be returned home to be buried among his ancestors in Koboko or not? The answer to this can only be given by the man himself. Alternatively, those who have been by his side all these years should be able to give a pointer as to what his wishes are. Of course if he wrote a Will, then this should contain all these details. After all, a Will comes in handy for such times as these!
If Amin had been an ordinary mortal, these questions would not have interested or engaged the public much. His immediate family would have had to wrestle with these questions and resolve them quietly and privately. But Amin is a former President of Uganda who ruled Uganda from 1971, when he overthrew Milton Obote, to 1979 when the Tanzanian army with sections of Ugandan exiles drove him out of power. Not only is he not an ordinary Ugandan, he was not an ordinary President. His regime is accused of causing the death and disappearance of hundreds of thousands of people.
The people aggrieved by his regime, have all along been advocating his extradition so that he faces justice. Many of these, therefore, may not think that sickness or death should offer an escape for the man they believe should be brought to account for his regimes many heinous crimes.
The nature of criminal law, however, is such that it is committed by an individual. It is that individual who forms the intention and it is that individual, sometimes in concert with others, who executes the crime. The punishment therefore, has to be prescribed and meted out against that individual who masterminded or ultimately committed the crime.
There is no vicarious liability, as such, in criminal law. Therefore, there can be no punishment on behalf of another. This also means that there cannot be post-humus punishment or trial, for that matter. That is why murder-suicides usually end any attempt at investigation, trial and conviction because there is nobody to try and convict. Being in coma also exempts him from standing trial. Obviously he does not have the mental or physical capacity to stand trial. Somebody must be possessed of all his mental capabilities to be able to stand trial. That is why even someone of unsound mind cannot stand trial, as such.
Hence insanity can be a defence to many crimes because one is not sufficiently possessed of all his faculties to make logical decisions. A person who cannot, or is not in a position to, plead guilty or not guilty, is ultimately unable to answer for his crimes. A person in coma, a dead person and an insane person are all in this category. Some people have argued that a post-humus trial should go on all the same, for the record even if a notorious criminal is dead. That record, however, would be one-sided because it would not contain the accused persons’ testimony. Such a trial therefore would be null and void.
In the case of Amin, the pertinent question to ask those advocating post-humus trial would be; why was the man not brought to trial while he was still alive and kicking? Why wait for him to go into coma before remembering that he had some questions to answer? This is not to say that he was a saint. Just to suggest that maybe the country had reached a quiet understanding to let sleeping dogs lie. If so, then that understanding should be left to continue until the man is called to meet his Maker whereupon, he will have gone beyond the reach of our human criminal law, as already pointed out.
Whether his remains should be brought back for burial among the ancestors, or not, may not be so much of a legal question as it is a political and social one. The argument of amnesty under the Amnesty Act does not arise because the Act does not cover the Amin period. The amnesty only applies to those engaged in or engaging in war or armed rebellion against the Government of the Republic of Uganda since 26th January 1986. The crimes Amin is accused of committing happened between 1971 and 1979.
Some have suggested that President Museveni should exercise his prerogative of mercy in the case of former President Amin. This, however, is not how this prerogative is exercised. There has to be a trial, conviction and sentence before the President can consider exercising his prerogative of mercy, as happened in the case of Nassur Abdallah. There cannot be forgiveness without conviction, as far as the prerogative of mercy is concerned.
Ends