MR.
SIMON BYABAKAMA MUGENYI very GOOD FOR THE JUDICIARY!
D.R.Ruhweza
In his article entitled ‘‘Will His ‘Lordship’ Mugenyi convict Dr. Besigye?” SM 2nd March 2008, Dr. Akaki starts
off very well by noting that some of the individuals nominated as High Court
Judges, may defy the President out of loyalty to their professional ethics and
independently interpret the law the way Justice Kanyehiamba and Justice Ogoola,
together with some lady judges who were from Namagunga have done. This is
indeed encouraging and I do support all those who have been nominated to do
exactly that. The judicial oath requires that they certainly adhere to their
professional calling, and respect the rules of natural justice, and good
conscience which I believe they are all competent to do.
Dr. Akaki notes that ‘‘many of the nominations read like an A-Z hit list of a movement legal
hit-squad’’. Whereas that might be true, I would like to ask the simple
question, what would Akaki do if he was in President Museveni’s shoes? Would he
not revert to people in whom he had faith and confidence to promote the cause
of justice regardless of whether they are Movementists or not? Would he not
revert to people he believed were capable of doing the job just like Justice Kanyeihamba,
(a former NRM Minister) has done? This is a phenomenon that also happens in the
USA
with the president choosing those who he believes will uphold the core values
of justice and equity as he thinks fit. It therefore seems to me that as long
as the constitution gives the President this mandate, he will choose from those
who he believes are competent regardless of their political inclination.
Do not get me wrong, just like Dr. Akaki, I was
also quick to observe that many of the nominees are reportedly of the movement ideology,
but I have since realized that the likes of Justice Kanyeihamba, Justice Mwondha,
Justice Margaret Sekajja and others who were of the same ideology have since
vindicated Museveni’s choice by being independent thinkers and adhering to
their professional calling. This might be regardless of the fact that the
President might not agree with their views. It was once reported that the
President criticized Justice Kanyeihamba’s views on the peasantry but at the
same time recommended him to become Chancellor to Basajabalaba’s Kampala
International University).
Please get me right, this does not necessarily
mean that I do agree with all the choices made by the President, but my
understanding of the Constitution is that once someone takes the judicial oath,
it should no longer be necessary which ideology one belongs. Such judicial
officer should be guided by Article 126(2) of the Constitution which requires
the courts to met out justice regardless of social and economic status of the litigants,
not to delay justice, to provide adequate compensation, to promote
reconciliation and to ensure that substantive justice is administered without
undue regard to technicalities. As such, any judicial officer who fails in this
role should be advised to surrender his office as has been the case for some. My
only problem is with the choice of the interim Supreme Court judges (See MUSEVENI PICKS ACTING SUPREME COURT
JUDGES by Michael Mubangizi, WEEKLY OBSERVER February 28, 2008), especially those from
the Court of Appeal who have already passed judgment in the cases they are now
required to adjudicate upon in the Supreme Court. Won’t the principles of
natural justice require that these same Judges step down because that would
certainly be a conflict of interest? Would they really be able to give
Tumukunde’s case for completely new appraisal? That remains to be seen.
Now, to the main theme
of Dr. Akaki’s article, I certainly disagree with the assertions of Akaki that ‘’the appointment of (Mr. Simon Byabakama)
Mugenyi to the High Court will instantly erase any semblance of independence
that is still left in the judiciary’’. Without delving into the true meaning oor
interpretation of independence of the judiciary, I think we ought to understand
who Mr. Byabakama is before we right him off as Akaki seems to suggests. Whereas
no one can ever know the intents of man’s heart (not even the devil does), I
can safely say that I know enough about Mr. Simon Byabakama Mugenyi to assert
that he deserves to be a member of the prestigious Ugandan bench. The Judicial
Service Commission, whose mandate is to identify and recommend suitable
candidates also knows Mr. Simon Byabakama Mugenyi well enough as to recommend
him. I have personally interacted with Mr. Simon Byabakama Mugenyi right from my
days as an impressionable student at Makerere, and I have found him to be a man
of integrity, character, godliness, and independent thought. He is a dedicated
and hardworking husband and father whose moral standing in society is to the
best of my knowledge unquestionable. Mr. Simon Byabakama Mugenyi was one of
those who inspired and mentored us to be god fearing, independent thinking
lawyers while we were still at Makerere. Together the likes of Michael Chibita,
the late Kabyesiza, Hon. Justice Lugayizi, Hon. Justice Sebutinde, Mr.
Sekabanjja, the late Charles Owor and many others, we were challenged and
continue to be inspired to practice the law with honesty and diligence in Uganda.
Mr. Simon Byabakama Mugenyi indeed continues to take off time to speak to students
at the law development centre and faculty of law Christian union events and to
even give guest lectures in my criminal procedure classes when I was a lecturer
at the Uganda Christian University.
We are indeed in need of men of such character on the Ugandan Bench. Going by
the Nation television interview of my former student, Mr. Odongo Otto, Mr.
Simon Byabakama Mugenyi has qualities which I am sure, Mr. Odonga Otto, would
have no problem with if he (Odonga) was still part of the vetting committee.
It should also be
remembered that this is not the first time that Mr. Simon Byabakama Mugenyi is
being nominated and approved for this position. Indeed, some unconfirmed
reports were to the effect that his appointment was delayed because some
concerned citizens wondered where a worthy replacement would be found for him
at the Directorate. I believe this is because of the excellent job he has been
doing at the Directorate of Public Prosecutions. Many of my learned friends
will agree that Mr. Simon Byabakama Mugenyi is a very likeable and hardworking character,
always ready to serve with a smile, and that accounts for why there are so many
people waiting up to see him every day even as early as 6.30 am and he is
always in office. This is a quality many of us in practice would like to see of
our judicial officers. Often times we wait for hours for some members of the
bench to commence court and this normally disorganizes our schedules.
So, Dr. Akaki, far from
what you might think, many a lawyer and judge do respect Mr. Simon Byabakama
Mugenyi. Infact I know of some people who have threatened to hire private
lawyers to prosecute their cases, if Mr. Simon Byabakama Mugenyi did not do so
and in some cases appellate court judges have insisted that he argues cases before
them instead of other prosecutors. So for Dr. Akaki to say that Mr. Simon
Byabakama Mugenyi has failed as a prosecutor is very far from the truth. Thus,
whereas Dr. Akaki faults him in this regard, I shall not be surprised to learn
in the near future, that Mr. Simon Byabakama Mugenyi has been chosen to head
the special division of the high court that will try the LRA rebels.
Dr. Akaki did quote my
learned friend Dr. Mpanga’s submission, but I suspect he (Akaki) did not
appreciate the meaning of Mpanga’s words when he said. I will quote….the case was born in the deluded mind of
Ms. Joanita Kyakuwa, nurtured and developed in State House, cooked to
imperfection in the Criminal Investigations Directorate of the Uganda Police,
and presented in full inadequacy by the Deputy Director of Public
Prosecutions’’. This statement alone should clearly show you the number of
players in the rape case against Besigye, and also explain the role of the DPP.
Like many Ugandans, I did not agree with the way Dr. Besigye was arrested
during the 2006 elections. Neither did I appreciate the role played by the then
CID Boss Kuteesa and the rubble rouser Kyakuwa wose testimony was also
astounding to me. The role of these various players, should not be pushed under
the carpet.
For Mr. Simon Byabakama
Mugenyi, I believe it was a case of a Doctor asked to stitch back the head of a
decapitated on to the body and expect that man to live! It was way too late and
many of us in the legal fraternity knew that the case was a non-starter. That
is why Dr. Besigye’s lawyers thought it unnecessary to put him (Besigye) to his
defense, inspite of the fact that the court had found that a prima facie case had been established
against him. So unlike the assertion of Dr. Akaki, Besigye was in fact required
to speak in his defense (not self defense-that
means something else completely) but his lawyers opted not to put Besigye
on the stand, a prerogative they have as per section 128 of the Magistrates
Courts Act ap. 16 and similar sections in the Trial on Indictments Act. It is thus
clear to me that this case was never cooked up by Mr. Simon Byabakama Mugenyi.
No! The role of the Director of Public Prosecutions is laid out in Article 120
of the Constitution. I wish to emphasize that Mr. Simon Byabakama Mugenyi is
the Deputy
DPP not the substantive DPP. As DPP, it
was up to Mr. Richard Buteera to either institute criminal proceedings against
Dr. Besigye (Article 120(b) or to discontinue the same (Article 120(d). Mr.
Richard Buteera chose the former, and I would like to believe, that like any
good soldier called to action, Mr. Simon Byabakama Mugenyi had no alternative
but to carry out the orders of his boss. We might falter Mr. Simon Byabakama
Mugenyi for deciding to go ahead with this trial, or ask the questions; if he
is such a man of character, why did he not resign or refuse these instructions?
That we can argue another day but for now, we need to appreciate that the
calling of a state prosecutor (who is a civil servant) is to carry out
government duty. Whereas I do agree that it was a bad case and possibly
commenced in bad faith as noted by Justice Katutsi, I would like to believe,
that Mr. Simon Byabakama Mugenyi must have expressed his opinion on this matter.
Whether his boss agreed with him or not is another question, but we should
recall that as a body of lawyers, the Uganda Law Society expressed its
dissatisfaction with the position taken by Mr. Richard Buteera and other law
officers for this and related cases by suspending him from the society for 6
months. No such action was taken against Mr. Simon Byabakama Mugenyi and the
reasons sem obvious to me.
Therefore, for a man
with arguably the longest list ( so I am meant to believe) of high profile and
other convictions in the recent history of the Directorate (Katuramu, Sharma
Kooky, Wavamunno, Mureeba to mention but a few), I am sure Mr. Simon Byabakama
Mugenyi’s reputation does tell us what quality of lawyer he is. It is probable that his prowess and seniority
made it imperative for Mr. Simon Byabakama Mugenyi to take on the prosecution
of Dr. Besigye.
It is further
unfortunate to say that Mr. Simon Byabakama Mugenyi abandoned the treason trial to become a judge leaving the accused
persons in limbo because that would mean that Mr. Simon Byabakama Mugenyi
is the one who initiated the trials in the General Court Martial an High Court,
at the same time that he is the one who is in charge of the prisons where the
accused persons are/were being kept or that without Mr. Simon Byabakama
Mugenyi, the treason trial cannot go on or that it is Mr. Simon Byabakama
Mugenyi who has lodged the appeals in court that called for the stay of the trial(s)
which is indeed very far from the truth.
It is therefore clear
to me and I believe to many in the legal fraternity and the general Ugandan
community, that there is no legal, moral or legitimate hindrance to bar Mr.
Simon Byabakama Mugenyi’s candidature for the position of High Court judge. In
fact, in my own view, due to his seniority and vast experience, he would even
be a far better choice for the appellate courts.
To our mentor Mr. Simon
Byabakama Mugenyi, I would like to congratulate you for a job well done
and a promotion well deserved. For Do
not give up this the fight justice and carry out your duties without fear and
favour.
However, do remember,
that the jury is out now. Watching your every move!! Remember the scripture
which says ….And what does the LORD require of you? To act justly and to love
mercy
and to walk humbly with your God. Micah 6: 8 NIV. Remember
too that the opportunities for corruption and influence peddling are now
greater than before. Play your part well and stand for righteousness!! Recall
the words of Mordecai to Queen Esther "For if you remain silent at this time, relief and deliverance will
arise for the Jews (Read Ugandans) from another place and you and your father's
house will perish. And who knows whether you have not attained royalty ( read
the judiciary) for such a time as
this?" Esther 4:14. Remember the Scriptures that call
you to "Preserve justice and do righteousness (Isaiah 56:1); also Jeremiah 22:3 which
says "Do justice and righteousness, and deliver the one who has been
robbed from the power of his oppressor. Also do not mistreat or do violence to
the stranger, the orphan, or the widow; and do not shed innocent blood in this
place. The same advice goes to
all the newly appointed members of the Ugandan Bench….
PLEASE, DO US PROUD!!
Daniel R. Ruhweza Esq.
Attorney and Lecturer-at-Law,
Makerere University
Member, Uganda Christian Lawyers’
Fraternity.
