The elephant is a very huge animal. It once suggested that there was no need for a bridge that all animals had spent enormous energy to construct so that they could cross to the other side of the jungle to hunt. Mr. Elephant tall as he is thought he did not need the bridge, and so for him, there was no need for the bridge. It didn’t matter to him that others weren’t his size and therefore needed a bridge.
Unfortunately Mr. Elephant lost both hind legs and could only crawl with the help of others. The bridge finally became relevant, and the only means Mr Elephant could cross to the other side of the jungle.
As I write, a man who was once powerful and untouchable will probably apply for bail. He will desire that the court martial is independent. Appearing before a committee of parliament not so long ago, Kale Kayihura strongly argued for the abolition of the 48 hour rule, because it was an inconvenience to police investigations.
Because we are humans, when we are satisfied, we often don’t imagine how the hungry feel and we sometimes call them greedy when we see them yearning for food. When one is at the helm of power, they think that the rule of law is an inconvenience to them or that is not necessary altogether. What they don’t think about is that someday, they too will need the protection of the system they once abused or even weakened themselves.
I would imagine if Iddi Amin had been arrested in Uganda, he wouldn’t like to be killed the way he killed others. Perhaps he could have regretted why there was no constitution to safeguard his rights to a fair trail. Because he was at the very top, the system was not necessary.
Our dear president thinks there should be no bail and police bond for “killers”. This statement, which I will take as a presidential directive because of the tone in which it was made, has many flaws. It presumes that before a person is found guilty by courts, he is already guilty (killers as opposed to suspects).
This is contrary to a near universal principle of presumption of innocence that is central to a fair criminal justice system. The right to apply for bail is premised on the presumption that the suspect is innocent until he or she is proved guilty or pleads guilty.
It is critical that society understands the import of this principle: first, crimes are often committed discretely with no direct evidence. Concluding that someone is guilty before enough evidence is adduced against them risks jailing innocent people. Our criminal justice system is not perfect but there must be a higher standard that minimises the risk of jailing innocent persons. That is why the standard of proof is beyond reasonable doubt as opposed to balance of probability applicable in civil matters. Second, people can malign others either because of grievances or hatred. Their evidence must be subjected to a scrutinious court process to ascertain it’s truthfulness.
Third, not all persons who commit crime do it out of their own will. Some are mentally ill and they don’t have control of their mental faculties. Some act out of provocation or self-defence and so their crime may be reduced to lower category crimes with a less sentence, for example manslaughter instead of murder. That is why we condemn mob justice for on sight crimes.
Because of these, article 28 of our constitution embedded principles that should ensure a fair trial. No matter the offence, every person suspected of an offence should go through this system of fair and transparent trial. The heart of criminal justice is hinged on the idea that it is better to let a hundred criminals free than convict one innocent person.
The recent spate of criminality is indeed frustrating, but we cannot undermine the very principles our ancestors fought hard to restore. None of us would prefer a return to Amini’s criminal justice system. Even Gen Kayihura who once abused this system for example by arresting suspects in court premises immediately after their release on bail, deserves to be tried fairly.
I know he understands now than before, the importance of the system based on rule of law. I know he might need bail. I know those that clapped for our dear president when he made the unfortunate remarks might someday need bail- maybe not because they are criminals but maybe they have been wrongly identified or falsely accused or they are political prisoners or for minor traffic breaches.
The point is that the system of rule of law, and respect for constitutionality guaranteed rights protects all of us- both the weak and strong, those in power and the governed. We can deter crime and ensure that constitutional rights are respected. We can do both. We achieve higher by holding ourselves to the highest standard.
Birungi Denis is a lawyer, email@example.com