Is the law letting criminals off the hook?
Article 126 of the Constitution provides that “Judicial power comes from the people and shall be exercised by the court in the name of the people according to the law and the values, norms and aspirations of the people.â€Â
Article 126 of the Constitution provides that “Judicial power comes from the people and shall be exercised by the court in the name of the people according to the law and the values, norms and aspirations of the people.â€Â
The Constitution further guarantees that courts must always do justice to all regardless who they are or how much money they have or can spend and justice shall not be delayed.
This, therefore, means that our constitution guarantees judicial independence. Administration of justice is based on both the prescribed law and human rights guarantees for even the suspects.
Independence of the Judiciary is central to any democratic state and never shall individuals or the state threaten this very much cherished principle of democracy.
I was dismayed by some radio presenters, on a weekend talk-show, who started speculating about the ruling by Justice Mukiibi in the Kajubi case. On the face of it, they were trying to show the public that the judge might have erred in his trial and judgment. One of them reached the extent of petitioning the President to intervene. These presenters completely misled the public.
I wonder why the journalists were commenting on the judgment. I also wondered whether they had a copy of the judgment at the time of the show. I doubt they consulted the spokesperson of the Judiciary to give them a guided opinion.
First, the law does not allow the President to either intervene or interfere with the work of the Judiciary at this level. There are clear and well streamlined procedures within our judicial system that can be followed to make sure that justice is done in case judicial officers error in matters of law or fact.
These include judicial review for lower courts and an appeal against the decision of the High Court to the Court of Appeal set out under the trial by the Indictment Act.
It would have been prudent if these presenters directed their “guns†to the prosecution and not the court or the judge. In my opinion and legal knowledge, the judge fully followed the due process of the law.
I would like to enlighten these presenters and the public about the way criminal prosecutions are undertaken and the procedure to be followed in all criminal trials.
Under criminal procedure where the prosecution has closed its case against the accused person, court has to make a ruling on whether or not there exists a prima-facie case against the accused.
Prima-facie case means that the case made out against the accused person by the prosecution is convincing enough and it is credible to justify the accused being put on his defence to hear his side of the case.
It, therefore, means that court directing its mind to the law and evidence could convict the accused if no explanation is given by the defence.
It is not the responsibility of court to look for evidence to be tendered against the accused.
One of the duties of the Director of Public Prosecutions provided under Article 120 of the Constitution is to direct the Police to investigate any information of criminal nature and report to him which information the DPP uses to institute criminal proceedings against any person or authority in any court of competent jurisdiction. Under Section 127 of the Magistrate Courts Act Cap 16, it is provided that if at the closure of the prosecution case, it appears to court that the case made against the accused is not sufficient to require him to be allowed to defend himself, the court shall dismiss the case and acquit the accused and order that he or she be set at liberty forthwith unless for other reasonable causes.
Court may hold that there is no case to answer (no prima-facie case) where there is no evidence to prove the essential elements of the offence charged where the evidence adduced by the prosecution has been so discredited through cross-examination or the evidence is so manifestly un reliable that no reasonable tribunal would safely convict on it.
The court must be left in no doubt as to the case which has been made out. It is not a proof beyond a shadow of doubt. I ask those who thought court had errored or misdirected itself on both matters of law and fact to explain what court would have done which is beyond the prescribed procedures under criminal law and criminal prosecutions.
I do not want to create an impression that the accused was guilty or not, but to bring it to everyone’s notice that the due process of the law was followed and court had to entirely depend on the evidence brought before it by the prosecution side. What is important now is to re-examine our criminal justice system in Uganda and find out where and what the weaknesses within the system are.
Of late, we have discovered that justice, according to the law, in most cases, favours the suspects or the accused mainly because of the Common Law and Article 28 of the Constitution that safeguards suspects on the presumption of innocent until proven guilty.
Therefore, in the Kajubi case, we should look at the inefficiency and inability of the Police and the office of the Director of Public Prosecution to carry out thorough investigations. This was witnessed, on many occasions, where justice Mukiibi was always uncomfortable with the way prosecution directed itself, with many errors and contradictions in the evidence presented before court.
It is more prudent to understand where the problem was other than basing on speculations. There is no speculation on matters of law. What is required now is to devise ways of improving our criminal justice system by strengthening all the line institutions, especially building and strengthening the capacity of the Police in carrying out investigations.
If we do not equip the Police with the necessary skills and equipment to do their work, I predict a serious crisis in the whole system of criminal investigations which will be disastrous to our criminal justice system.
Otherwise, if we continue moving in this direction where justice according to the law appears to be favouring suspects, people may resort to taking the law into their own hands as has been demonstrated by the increasing cases of mob justice.
By FREDRICK SSEMWANGA
The writer is a consultant on human rights and access to justice
The Constitution further guarantees that courts must always do justice to all regardless who they are or how much money they have or can spend and justice shall not be delayed.
This, therefore, means that our constitution guarantees judicial independence. Administration of justice is based on both the prescribed law and human rights guarantees for even the suspects.
Independence of the Judiciary is central to any democratic state and never shall individuals or the state threaten this very much cherished principle of democracy.
I was dismayed by some radio presenters, on a weekend talk-show, who started speculating about the ruling by Justice Mukiibi in the Kajubi case. On the face of it, they were trying to show the public that the judge might have erred in his trial and judgment. One of them reached the extent of petitioning the President to intervene. These presenters completely misled the public.
I wonder why the journalists were commenting on the judgment. I also wondered whether they had a copy of the judgment at the time of the show. I doubt they consulted the spokesperson of the Judiciary to give them a guided opinion.
First, the law does not allow the President to either intervene or interfere with the work of the Judiciary at this level. There are clear and well streamlined procedures within our judicial system that can be followed to make sure that justice is done in case judicial officers error in matters of law or fact.
These include judicial review for lower courts and an appeal against the decision of the High Court to the Court of Appeal set out under the trial by the Indictment Act.
It would have been prudent if these presenters directed their “guns†to the prosecution and not the court or the judge. In my opinion and legal knowledge, the judge fully followed the due process of the law.
I would like to enlighten these presenters and the public about the way criminal prosecutions are undertaken and the procedure to be followed in all criminal trials.
Under criminal procedure where the prosecution has closed its case against the accused person, court has to make a ruling on whether or not there exists a prima-facie case against the accused.
Prima-facie case means that the case made out against the accused person by the prosecution is convincing enough and it is credible to justify the accused being put on his defence to hear his side of the case.
It, therefore, means that court directing its mind to the law and evidence could convict the accused if no explanation is given by the defence.
It is not the responsibility of court to look for evidence to be tendered against the accused.
One of the duties of the Director of Public Prosecutions provided under Article 120 of the Constitution is to direct the Police to investigate any information of criminal nature and report to him which information the DPP uses to institute criminal proceedings against any person or authority in any court of competent jurisdiction. Under Section 127 of the Magistrate Courts Act Cap 16, it is provided that if at the closure of the prosecution case, it appears to court that the case made against the accused is not sufficient to require him to be allowed to defend himself, the court shall dismiss the case and acquit the accused and order that he or she be set at liberty forthwith unless for other reasonable causes.
Court may hold that there is no case to answer (no prima-facie case) where there is no evidence to prove the essential elements of the offence charged where the evidence adduced by the prosecution has been so discredited through cross-examination or the evidence is so manifestly un reliable that no reasonable tribunal would safely convict on it.
The court must be left in no doubt as to the case which has been made out. It is not a proof beyond a shadow of doubt. I ask those who thought court had errored or misdirected itself on both matters of law and fact to explain what court would have done which is beyond the prescribed procedures under criminal law and criminal prosecutions.
I do not want to create an impression that the accused was guilty or not, but to bring it to everyone’s notice that the due process of the law was followed and court had to entirely depend on the evidence brought before it by the prosecution side. What is important now is to re-examine our criminal justice system in Uganda and find out where and what the weaknesses within the system are.
Of late, we have discovered that justice, according to the law, in most cases, favours the suspects or the accused mainly because of the Common Law and Article 28 of the Constitution that safeguards suspects on the presumption of innocent until proven guilty.
Therefore, in the Kajubi case, we should look at the inefficiency and inability of the Police and the office of the Director of Public Prosecution to carry out thorough investigations. This was witnessed, on many occasions, where justice Mukiibi was always uncomfortable with the way prosecution directed itself, with many errors and contradictions in the evidence presented before court.
It is more prudent to understand where the problem was other than basing on speculations. There is no speculation on matters of law. What is required now is to devise ways of improving our criminal justice system by strengthening all the line institutions, especially building and strengthening the capacity of the Police in carrying out investigations.
If we do not equip the Police with the necessary skills and equipment to do their work, I predict a serious crisis in the whole system of criminal investigations which will be disastrous to our criminal justice system.
Otherwise, if we continue moving in this direction where justice according to the law appears to be favouring suspects, people may resort to taking the law into their own hands as has been demonstrated by the increasing cases of mob justice.
By FREDRICK SSEMWANGA
The writer is a consultant on human rights and access to justice