Following the denial of release on Bail to RTD Lt. Gen Henry Tumukunde, a Soldier, Lawyer cum Politician by the High Court of Uganda, The Legal Reports sought and obtained opinions of some of the Country’s seasoned Lawyers on the Court ruling.
The High Court of Uganda presided over by Justice Wilson Kwesiga on Tuesday refused to grant bail to Maverick General Henry Tumukunde ostensibly on ground that his sureties were not substantial enough as to compel him to face his treason and unlawful possession of firearms charges.
According to the Learned Justice, Gen Tumukunde should have presented atleast two sureties who are serving military officers at or above his own rank of Lt General and that these Officers must obtain an introductory letter from the Chief of Defence Forces(CDF).
” In my view, military officers [ in reference to Tumukunde ], seeking to be released on bail should furnish Court with sureties who have the capacity to trace, prevail over them, or even to compel them to abide by court orders” Justice Kwesiga said in his 9- Paged ruling.
The sureties Gen Tumukunde presented were Mr Matthew Rukikaire ( a Senior Citizen and Former Government Minister), Hon. Salaam Musumba ( the Vice Chairperson of the FDC political party in Eastern Uganda), Mr Nandala Mafabi (Member of Parliament), Mrs Stella Tumukunde ( His wife), Mr Hannington Karuhanga ( a leading Businessman and elder brother to Gen Tumukunde) and Gen Mugisha Muntu ( a Former Chief of Defence Forces).
Justice Wilson Kwesiga also considered the current Coronavirus lockdown which he said should offer an opportunity to the State to complete its investigations into the charges against the General.
” In Criminal cases, Justice starts with investigation, gathering evidence, and preserving it for trial” The learned Judge reasoned.
” For protection of the state evidence yet to be collected, the solution is not to reject releasing the Applicant on Bail but to delay the release for a reasonable time due to the prevailing national precautions” He said, thereby postponing the consideration of Gen Henry Tumukunde’s Bail to a month after the lockdown is lifted.
Speaking to the Legal Reports immediately after the Court ruling on Tuesday, Counsel Anthony Wameli, one of the Lawyers who represented Gen Tumukunde in the Bail Application said they find the ruling ” disturbing.”
According to him, it was “tricky” for the Court to require that their client presents sureties at or above his rank.
” Our client retired at the rank of Lt. General so if you are to look for Lt. Generals or those above the rank of Lt. General in Uganda you will not get so many and then this means you also have to get someone who is either your colleague, someone you are connected with – you can’t get a stranger surety” He argued.
Secondly, the Lawyer, who is also a Partner at Wameli and Company Advocates, argues that for the Chief of Defence Forces (CDF) to give such an introductory letter to serving military officers for the purpose of standing surety for Gen Tumukunde is akin to ” shooting himself in the foot” because ” it is in the interest of the CDF that someone is convicted as charged because treason is against him”
While acknowledging that court orders must be respected, Counsel Alex Luganda who was also part of the General’s legal team said they were ” dismayed” by the Ruling.
” From a legal perspective as Lawyers, we have a duty to respect the ruling though we disagree with it to an extent because by requiring that you [ as a Judge] postpone your pronouncement on the Bail Application until 30 days after the lockdown is lifted because you want to afford the state time to complete the investigations is wrong legally because the denial or grant of bail is not premised on how far the state has gone as far as investigations are concerned” He told the Legal Reports on Wednesday morning.
It is common knowledge, says Mr Luganda that state investigations take 6 months and in some cases a year or even more before the accused person is committed to the High Court for trial.
What do other lawyers say?
The question of the Court’s consideration of the nature of sureties in a bail application has raised eyebrows not only in legal circles but generally in members of the public especially across the internet with many arguing that requiring Gen Tumukunde to present sureties with a military background is beyond the scope of the law on bail given that he has ever since retired from the Military.
” The Military has no jurisdiction over civilians and Tumukunde is a civilian ” says veteran human rights lawyer and defender Mr Ladislaus Rwakafuzi speaking to the Legal Reports on Wednesday Morning.
Rwakafuzi who has appeared before the High Court in bail applications and other key human rights and constitutional matters on behalf of persons in similar circumstances that is to say slapped with criminal charges amidst a political campaign like Tumukunde, especially Dr Kizza Besigye says:
” Under the Constitution, the grounds for refusal of bail do not include the nature of sureties”
In agreement with Mr Rwakafuzi is Lawyer Bruno Sserunkuma, a seasoned commentator on constitutional law issues.
” Under Article 23 (6) (a) of the Constitution, provided a person has been arrested and charged, the Court has the discretion to grant bail to that accused person.
This provision has no qualification. So these things the Judge said like the Coronavirus lockdown are not excuses” He said in an interview with the Legal Reports on Tuesday evening.
According to Counsel Bruno, the learned Justice Kwesiga should not have read into Article 23(6) (a) of the Constitution the Coronavirus situation.
” That was wrong for the Judge to do… very wrong. There is no reasonable Judge with the experience of Justice Kwesiga that can deliver such a dilapidated ruling.
” The Authorities are wrongly cited and applied. The Constitutional provisions are properly cited but wrongly applied.
” This ruling is unconstitutional, unprecedented, unheard of and a compromise of the rule of law and the Constitution.
” When you ( telling our Reporter) read that Judgement, the Judgement cites cases which were decided before the 1995 Constitution which was wrong… What we are looking for here is the spirit of the new Constitution of Uganda ” He said, passionately.
According to him, the Judge did not address his mind to previous similar cases notably the 2005 cases of Dr Kizza Besigye and David Tumushabe which he says are ” binding” and thereby the Judge has ” set a bad precedent.”
” I don’t know whether the problem was on the Lawyers because usually the Lawyer is the one who sets the pace for the Judge” adds, Counsel Bruno Sserunkuma, laughing.
” But still the expert of the Law is the Judge and in this case the Judge is wrong”
Kampala based Human Rights Watchdog Legal Brain Trust’s Mr Isaac Ssemakadde shares similar sentiments on the Legal strategy adopted by Gen Tumukunde’s Lawyers in the handling of his case.
” Disturbing though the Court ruling maybe, I must respectfully say that the Lawyers adopted a woefully inadequate strategy in the grand scheme of things” He says, when asked for Comment on Tuesday evening.
According to the Maverick Public Interest Lawyer who successfully represented Makerere University Researcher Dr Stella Nyanzi in a case entirely based on the Academic’s comments on her Facebook where she referred to President Museveni as a ” Pair of Buttocks,” Gen Tumukunde’s Lawyers should have first challenged the charge sheet on which all his woes are based for offending freedom of expression.
Gen Tumukunde is accused of treason in respect of statements made on on a Morning show on one of the Local Televisions where apparently he said that if he were Rwanda, he would support those who want to cause a change in Uganda – a statement which has been construed to incite unlawful change of Government hence treasonous.
” They did not take the step to challenge the legality of the charge sheet for offending freedom of expression and press and therefore even if granted Bail, the good General would have been a Court gagged and a media blacklisted non entity in the political arena at a time of high political activity” Mr Ssemakadde says.
According to him, General Tumukunde even if granted Bail would have gone to live as though under arrest and not as the same man he was before the arrest.
” There is great doubt on whether the good General in law may be said to have a home or office to which he would return to and self isolate from had he been granted Bail since according to available public information his properties are officially a no-go crime scene.
” And his attorneys for reasons unknown have not taken step to challenge the entry, search and seizure or sealing off of the General’s known homes and offices in Kampala and the upcountry.”
Gen Tumukunde’s Lawyers, according to Mr Ssemakadde failed to realise the greater substance of the case which is more about frustrating his freedom of speech than just his liberty.
” This is about what you ( referring to our Reporter) in the media call eyeballs, clicks, et cetera. They don’t want him to speak to the people. If he had been released, no TV or Radio would want to host him.
” And the Lawyers must understand they are not representing a businessman who wants to go to Dubai for a business trip, they are representing a Politician who must take to the Campaign rostrum and the Public hears his ideas.
” So, this is not a criminal matter but about freedom of expression and for us as at Legal Brains Trust if this continues we will have to step in and provide leadership since the pendency of that treason charge has a chilling effect on freedom of expression for all Ugandans during this political season.
” They (Tumukunde’s Lawyers) must go back to the drawing board and fight for a more comprehensive form of liberty or a third party intervenes” Mr Isaac Ssemakadde said.
However, when contacted after this criticism, General Tumukunde’s lead Counsel Anthony Wameli said they have that “card” in store but ” in our wisdom, this was the better one first.”
” Liberty is a greater right than expression to an individual who is sickly and wants to carry out consultations”