An Old Piece

 

 

MR. SIMON BYABAKAMA MUGENYI very GOOD FOR THE JUDICIARY!

 

D.R.Ruhweza

 

In his article entitled ‘‘Will His ‘Lordship’ Mugenyi convict Dr. Besigye?” SM  2^nd 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.