May 30, 2016, The Honourable Chief Justice of Uganda Kololo, Kampala
Attn: Hon Mr Justice Bart M. Katureebe
Dear Sir, RE: COMPLAINT ABOUT MISTREATMENT
Accept my congratulations on your appointment to the high office of Chief Justice of Uganda in 2015.
Beyond extending my congratulations, I also write to you, as the head of the Judiciary to voice my concerns over various matters which involve my person. Given the experiences I have gone through over the years, it is perhaps time to officially put forward my concerns with the hope that these will be addressed.
As you may know, I have participated in the political processes in Uganda since the early 1980’s when I joined the guerrilla force of the National Resistance Army. Convinced about the need to contribute what I could in changing the course of the political, social and economic narrative of Uganda, I plunged into the effort.
Part of government
Following the five-year Bush War, the NRA/NRM captured State power and formed government. I was part of that government until my retirement from the Uganda People’s Defence Forces in 2000. Thereafter, on account of a careful analysis of the political events of the day, I sought to continue shaping that narrative by participating in elective politics for the highest office in Uganda.
You will also recall that I was a delegate to the Constituent Assembly that debated and promulgated the 1995 Constitution of Uganda and, therefore, have the advantage of direct personal participation and enriching experiences in many events that have shaped present-day Uganda.
I am a firm believer that change in leadership is critical for any nation, whether developing or developed, perhaps more critical for the former category. As a believer in and practitioner of democratic ideals and principals, I have devoted my energies since the 1980’s towards the pursuit of good governance, the full observance and enjoyment of human rights as well as politico-socio-economic transformation for my beloved country. My commitment to change and transformation of Uganda for Ugandans has been and remains total.
My resolve to observe the Constitution of Uganda has been and remains steadfast and although I have endured tremendous suffering at a personal level because of my beliefs and convictions, I have remained steadfast that true democratic governance will come to Uganda.
Owing to my efforts at pursuing a legitimate shot at the presidency, I have been demonised by the government and ostracised repeatedly and my actions and utterances painted as criminal acts. In this context, a number of issues have arisen that are critical for you to examine and perhaps act upon.
Shortly after the 2001 general elections, where violence was unleashed on and used to terrorise large swathes of the population, I was driven into exile. My return in 2005 was premised on the need to clear my name and be present to continue pressing for transformative and democratic political practice and enlarged and free political space in Uganda.
A few days after my return, I was arraigned in a court and charged with the capital offences of rape and treason. Together with 22 other Ugandans, we were shuttled to and from the High Court on the treason charge. We were also charged with terrorism and arraigned before the General Court Martial for trial. Trials over the same allegations were to be conducted in military and civilian courts.
While this was going on, there were orders by the High Court that we should be released on bail. I was nominated as a candidate in the 2006 presidential elections while in prison. Eventually after much contestation I was released on bail. During this period, the rape trial commenced and was conducted concurrently with the gruelling nation-wide campaign for votes.
Eventually, the court acquitted me on the rape charge. In that case, it was found that evidence had been fabricated by a senior police officer who was also the director of Criminal Investigations Department gainst me. No disciplinary action was taken against this officer. Thankfully, the court was bold and affirmed its independence by acquitting me as no case has been made out requiring my explanation.
The treason trial commenced shortly after the elections were concluded. Fabricated evidence was again assembled against me. In an unprecedented act by security forces, the High Court was raided twice to deny my co-accused bail which had been granted to them by the High Court. There were attempts to remand them in a civil application brought in the main criminal case. They were also charged with murder of non-existent persons allegedly committed in Arua and Bushenyi.
When they were eventually freed, my co-accused were re-arrested violently from the court premises and returned to incarceration where tempting offers for amnesty were dangled at them on a daily basis to persuade them to plead guilty.
Some were swayed by these offers while others, knowing that they were innocent, remained steadfast. These events led to the death of one of my co-accused also my brother Joseph Musasizi.
The treason case was eventually dismissed on account of the intervention of the Constitutional Court which recognised that the acts of the Government of Uganda towards both the accused and the High Court made it clear that a free and fair trial would not be possible as the only verdict the government was willing to respect was a verdict of guilty.
I did not agree with the results of the 2001 and 2006 elections respectively and challenged these in the Supreme Court. Although I did not agree with the decisions from this court, I respected them.
In 2011, I participated in the general elections. The results again returned Mr Yoweri Museveni as the winner. Owing to the unprecedented use of money in that election, Uganda’s economy suffered so much with inflation rising to unacceptable levels leading to serious socio-economic effects.
In April 2011, many Ugandans, including myself, joined activities of the walk-to-work campaign. The reaction of the security forces to my participation and presence in these peaceful activities which were intended to draw the attention of the government to the sky-rocketing prices of fuel and other basis commodities was most shocking.
Our decision to walk along the roads to and from our workplaces was interpreted as a threat to national security.
In a most high-handed and unnecessary manner, we were regularly brutalised for choosing to stand with other Ugandans to call attention to a state of affairs that made life for all and sundry unbearable for many months. Various experiences from this period will demonstrate the level of victimisation suffered:-
a) I was arrested at each attempt to join the campaign, whether held in Kampala or elsewhere. These arrests resulted in court appearances on charges alleged to be about public order. Some were traffic related offences. In none of the cases prosecuted was I found guilty or even required to defend myself.
The cases were either withdrawn or did not survive beyond the “no-case-to-answer” submission. In several of these cases, the witnesses were clear in their evidence that I had committed no offence. Nonetheless, the Uganda Police Force and the then Director of Public Prosecutions, Mr Richard Buteera, continued to arrest, harangue and attempt to try me, always without success. I am aware that the Inspector General of Police was promoted to a full general and Mr Buteera promoted to the Court of Appeal.
b) On one occasion, I was assaulted with various noxious substances in toxic doses for a sustained period nearly leading to loss of sight. This assault was committed by a police officer called Gilbert Arinaitwe Bwana.
Driven and transported at break-neck speed on the back of a police pick-up, the experience was so horrendous that I had to seek treatment in Kenya when I was eventually allowed to leave the country.
Even in a state where I could not see or even walk on my own, I was arraigned before the Chief Magistrate’s Court at Kasangati to plead to charges around public order. It took the sustained resistance of my lawyers for the court to allow me seek medical attention first. I am informed that this police officer was publicly applauded and perhaps even promoted for these heinous acts.
c) On another occasion together with four others, I was charged in the Chief Magistrate’s Court at Nabweru. The Chief Magistrate, Ms Justine Atukwasa, refused to hear our bail application on grounds that she was busy and instead remanded us to Nakasongola Government Prison.
Expecting to return to the same court for hearing of the application when the when the magistrate had time for us, we were surprised to be brought before the same magistrate in Nakasongola. Apparently, the court had moved to where we were being held instead of hearing our application in Nabweru.
Our lawyers did not appear and the court surprisingly granted us bail on its own volition. I gather that this magistrate has been promoted to the High Court and is now a registrar.
d) On another occasion, I was shot in the finger and it remains of limited use to date.
The Uganda Police Force suggested that I had injured my finger to attract sympathy. In the period 2011 to 2016, I became the subject of regular harassment, accosting, intimidation and multiple arrests, and have seen the inside of police cells in various parts of the country although my most regular visits have been to Nagalama Police Station.
In the vast majority of the cases where I have attempted to travel to Kampala city where I conduct legitimate business or to seek medical care or engage in social activities such as weddings, church services or public sporting events, or attend political meetings of the Forum for Democratic Change, I have been violently arrested. Sometimes, I am returned to my home in Kasangati. Frequently I am first detained at Nagalama Police Station for hours and then dumped at my home between 11 pm and midnight.
When the police found this strategy ineffective or unsustainable, they resorted to keeping me detained at my home in Kasangati with no access to the outside world, either through human contact or through other communication methods.
On many occasions, communication around my home was jammed.
Guests intending to visit me, including my lawyers, were repeatedly denied access to my home or only allowed access when permitted by senior police officers such as Andrew Kaweesi.
Frequently, my visitors were required to record their particulars in a book kept by the police and were either photographed or filmed by police camera crews. The police and other security agencies assembled and remained on my land for many days. Without provision of sanitation facilities, this army of security services soon converted parts of my land into toilets, making them impassable and a life health hazard.
Having been incarcerated at my home for more than 30 days, on the advice of my lawyers, I sought the intervention of the Chief Magistrates Court at Kasangati in an application seeking to secure my release. A similar application had temporarily secured my release in 2011 when placed in similar circumstances.
The application was argued in April 2016 and adjourned for a ruling to be delivered the following day. In a surprising turn of events, the file was recalled to the High Court the same afternoon it had been argued, allegedly for revision.
The revision was allegedly requested for by the Director of Public Prosecutions who was not even a party to the application.
It was unsuccessful as the High Court judge did not find fault with the orders given by the magistrate who had entertained that application. The file was returned to Kasangati to be concluded. While we were waiting for a ruling, another strange event intervened.
On April 29, Deputy Chief Justice Steven Kavuma granted an ex-parte order against the Forum for Democratic Change and myself barring a number of things. This order was obtained in the presence of Deputy Attorney General Mwesigwa Rukutana and two other ministry of Justice officials. This order included two very strange decisions.
Ordered not to deliver her ruling
Firstly, the magistrate in the Kasangati case was ordered not to deliver her ruling. Secondly, another application Misc. Cause No. 32 of 2016 which I had filed in the High Court against the Attorney General to secure freedom and have the government stop violating my rights, and which was also pending hearing, was restrained.
While I found it fit to attempt to secure my rights using the Constitution and the courts of judicature, Mr Kavuma and the Attorney General saw it best to deny me that avenue and effectively surrender me back to the whims of the Uganda Police Force. Service of the order, the petition or the application in the Constitutional Court has to date not been effected on me.
The two applications that were affected by the order of Mr Kavuma had been filed in order to secure my release because I was being detained without trial. As you are aware Article 43(2) of the Constitution does not permit detention without trial. The effect of Mr Kavuma’s orders was to perpetuate my detention without trial.
As you may know, during the 2016 presidential campaigns, I asserted that we would win by defiance. This word seems to invoke the worst in the security services yet it is a principle embedded in the duties of a citizen as articulated in the Constitution of Uganda.
The specific duty in issue here is the promotion of democracy and the rule of law. Where the law is being abused, citizens are required to resist such abuse because that is the only way to ensure rule of law.
Where corruption, bad governance, wastage of resources, poverty, lack of health facilities and care, etc. abound, any citizen has a duty to resist such things and defy anything that feeds off such vices.
Our campaign was, therefore, a clarion call for citizens of Uganda to resist illegality and injustice as they are duty bound to do. We have been demonised by the police and some State institutions for calling on citizens to defy illegality and injustice.
The most recent events are not any different from what I have endured in the past. In exercising my freedom of movement, I went to Kampala city on May 11. I was violently arrested and driven to Nalufenya Police Station in Jinja District and incarcerated there. In the evening I was flown on a police helicopter to Moroto District to be detained at Moroto Police Station.
On May 13 at 6.40pm, I was arraigned before Moroto Chief Magistrate Charles Yeteise and charged with treason. I did not, contrary to Article 28(3) of the Constitution, have legal representation. The particulars suggest that between February 20 and May 11 at various places in Wakiso and Kampala districts, I, together with others, were engaged in treason. I was then remanded to Moroto Government Prison.
On May 16, I was again taken before the same magistrate and orders were issued to transfer me to Luzira prison in Kampala. I was flown back from Moroto on a private fixed wing aircraft to Kajjansi Airfield and eventually transferred to Luzira prison in the afternoon.
On May 18, I was taken to Nakawa Chief Magistrate’s Court where fresh charges of treason were again read to me. Although the production warrant suggested that the case was fixed for 9am, I was produced in court shortly after 8am and within a few minutes the matter had been concluded and I was returned to Luzira on remand where I remain to date.
Once more, I did not have legal representation and even when I tried to raise my concerns at that time, the presiding magistrate refused to listen to the concerns I wished to address him on and advised that these should be raised with the prisons authorities or the High Court! Today [June 1], I was supposed to re-appear in Nakawa Chief Magistrate’s Court for mention of the case.
I was not taken to court but was advised that the court was being moved to hear my case at Luzira prisons ostensibly because of security issues.
From the narration above, I wish to make the following two simple points:
a) My rights as a citizen of Uganda are being abused repeatedly. The police have turned my home into a holding cell. I have been denied freedom of movement and have been arrested each time I set foot outside my house. I have been denied society with others and been turned into an object to be feared or avoided. I am not permitted to even go to a shop on my own.
The choice that I face increasingly is where I should remain incarcerated – either at my home in Kasangati or at Luzira prisons. Detention without trial is illegal as far as I can remember. I am being produced before courts outside the normal working hours for these courts. To date, I have not been allowed to have lawyers in court. It seems that while others enjoy the presumption of innocence, in my case I enjoy a presumption of guilt. My appearance in court is regularly shrouded in mystery so much so that friends, relatives, doctors or other members of the public who would wish to attend are denied access.
b) The independence of the Judiciary is increasingly being questioned and as the head of this arm of government, it is incumbent on you to come out boldly and clearly and act to ensure proper administration of justice. As my experiences illustrate, justice is being administered at the whims of the judicial officers to whom the cases are allocated or through interference and undue influence practiced on those individual judicial officers.
I, therefore, seek your intervention to issue such necessary orders and directions to the courts in order that my rights are not trampled on. How, for example, can one court order another not to hear a case before it when each court is supposed to be independent and not come under the control of any person or authority?
It appears increasingly that I might be tried in secret and that the court will be facilitated to handle my matter in Luzira prison. Perhaps the same approach is being considered in respect of the other cases to which I am a party.
My experiences may be viewed as personal to me. However, in my own analysis of the political landscape in Uganda, it is critical to keep in mind, while considering whether to attend to this letter or not the words of Edmund Burke who said that the only thing necessary for evil to triumph is for good men to do nothing.
Further it is critical to recall the political events in Uganda’s history including those that affected the office you currently occupy.
I am reminded in that context about the words of Martin Niemoller to whom a powerful poetic speech is attributed: “First they came for the Socialists and I did not speak out, because I was not a Socialist; then they came for the Trade Unionists and I did not speak out, because I was not a Trade Unionist; then they came for the Jews and I did not speak out, because I was not a Jew; then they came for me – and there was no one to speak for me.”
Col (Rtd) Dr Kizza Besigye