Law don: Court order banishing Wadri from Arua is unconstitutional
COMMENTARY | CHRISTOPHER MBAZIRA
Despite trying hard, the events of the last two weeks in Uganda cannot leave my mind. I Keep getting flashes of persons being tortured and hear voices of both tormentors and victims. The images of the accused when they appeared in court the first time cannot leave my mind.
The image of a woman being carried out of court as she screamed in pain is fresh in my mind. One question that rebounds in my mind is simply: “How did we get here?” and “Where are we headed?”
The release of the accused from custody on bail on Monday August 27 came as great relief to many Ugandans. I have the greatest respect for Judge Stephen Mubiru, the resident judge of Gulu, who released the suspects on bail. He has an impeccable record. As a legal practitioner, he excelled, so did he as teacher at the Law Development Centre and now as a judge.
Those who have interacted with him in all these capacities attest to his hard work, high level of organisation and the capacity to quickly discern issues, separating the relevant from irrelevant and deciding in a judge-like manner. A close interaction between myself and the Judge revealed that he would make an excellent academic, demonstrated by his ability to reason and rationalise issues in ways that explore the policy motivations, mischief targeted and impact of the law.
What bothers me though is the condition that Judge Mubiru attached on Kassiano Wadri’s bail, banishing from his constituency in Arua for 90 days. In my view, this condition is unconstitutional. To understand this, we need to go back to 1997, a time when the 1995 Constitution was fresh.
One of the first constitutional cases to test the new Constitution was Salvatori Abuki vs Attorney General (Constitutional Case No. 2 of 1997, later Constitutional Appeal No. 1 of 1998), a hilarious yet serious ground-breaking decision. Here goes the story of Mr. Abuki. He had been charged with Witchcraft under the Witchcraft Act.
Abuki had pleaded guilty to the offence, admitting that he had practiced witchcraft on a one Albatina Agol and two others. Abuki was sentenced to 22 months imprisonment. In addition, he was banished from his home for 10 years after serving his sentence. On his release, Abuki, through his Lawyer, Emoru, Abuki challenged section 3 of the Witchcraft Act which allowed a court to banish a convict from their home.
The court agreed with Abuki that the exclusion order was unconstitutional, to the extent that it denied Abuki access to his home, which was his property and from where he fended for himself through farming. In this, the Court found that the banishment violated Abuki’s right to life, since it would deny him of means of livelihood.
The court found the banishment inhumane and if upheld would leave Abuki a destitute. It also contravened his right to move freely through out Uganda as guaranteed by Article 29 of the Constitution.
It is clear that Judge Mubiru’s order against Wadri excludes him from his home for 90 days. The Judge reasoned that the exclusion was intended to prevent Wadri from interfering with investigations. In my view, however, this order is unconstitutional as I illustrate below.
1. Wadri needs to access Arua for purposes of preparing his defence. He also needs to be in Arua to get his witnesses as much as the police needs to be there to get witnesses against Wadri. Excluding Wadri from the scene of crime gives the Police an unfair advantage against the accused. Wadri in the 90 days will not be able to visit the scene, have experts examine the same and build his case. One could argue that but his lawyers could have access. But these can only effectively be facilitated and should take advantage of the fact that their client is out on bail.
2. I presume Wadri’s primary home is in Arua. The 90 days exclusion banishes him from his home and access to his family members who may not be able to travel to Kampala. This interferes with family life, access to children and the comfort of his home, from where he would recover from the effects of the torture he and colleagues endured.
3. The exclusion violates Wadri’s right to freedom of movement. It is a limitation on a right that should have been imposed only after being subjected to the analysis demanded by the limitation provision in Article 43 of the Constitution. Among these is the proportionality test, as well the question of whether it is supported by a law of general application. It had to be one acceptable in a free and democratic society. I doubt the Judge allowed counsel the chance to respond to the condition before he made it an order.
4. The exclusion order denies Wadri access to his constituency and denies his constituency access to their political representative. In this it violates their political rights.
5. The exclusion order mirrors the banning orders issued by the apartheid government in the 1980s against political activists in South Africa. Winnie Mandela and many activists suffered such orders. The apartheid government banning order excluded their targets from such things as being quoted in the media, being in the company of more than two persons, and being restricted to remote areas of the country. Winnie’s banning order lasted for 24 years and she was among others confined to a house in rural Eastern Cape. These orders were successfully challenged in a test case in 1986. Colonial governments across Africa had used similar sanctions to manage political activism.
Was the order by Judge Mubiru part of the political compromise? Whether or not it was, I think it needs to be challenged. Otherwise, it sets a bad precedent.
Dr Christopher Mbazira is an Associate Professor of Law, Coordinator of the Public Interest Law Clinic (PILAC) at the Makerere University School of Law in Kampala
This commentary was originally published on Facebook.