Saturday, October 16, 2010

Constitutional Court slaps state in the face; stops Besigye trial

Constitutional Court slaps state in the face; stops Besigye trial

Stopping Besigye’s trial was too liberal. Guy us vitually immunised from state prosecution

By Asuman Bisiika

On Tuesday October 12, the Constitutional Court stopped the trial of Dr. Kizza Besigye in the High Court and the Military Court Martial. Most commentators described this as an unprecedented landmark court ruling.

Mr. Richard Butera, the amiable director for public prosecutions, could only make a feeble response to the rather surprising ruling.

Now, during Vision Voice’s Talk of the National radio talk show on which I am a regular, show host Paul Busharizi asked my opinion on the ruling. I said it was tempting to see the ruling as one of those ironical things for which President Museveni picked credit.

Uganda has come a long way you know; so far away that the state’s acceptance and abiding by a court ruling is an achievement that should be attributed to president. We after all know that the state is capable and can do any thing to stifle the free operation of the Judiciary. Yes, President Museveni takes credit for the fact that he can let the Judiciary ‘run riot’ in town.

Yet beyond politicising things, there is another way to look at the Constitutional Court ruling that stopped the prosecution of Dr. Kizza Besigye. And here…

On September 22 1972 or thereabouts, President Idd Amin killed Chief Justice Ben Kiwanuka over what was believed to be disagreement on the direction and process of justice in the country. The death of Ben Kiwanuka, after whose name a Parish in Lubaga Division and a road in the business centre of Kampala City has been named, has always inspired the Judiciary in Uganda.

Ben Kiwanuka’s martyrdom set the bar very high for both the political leadership and the Judiciary. What can the political or military leadership do to the Judiciary that is more outrageous than the killing of the Chief Justice? Or what can the leadership of the Judiciary do that is more bold and courageous than Chief Justice Ben Kiwanuka’s actions that earned him martyrdom?

So, with this kind of background, the Judiciary can spring off almost anything on the government. Indeed let’s face it; although the reasoning behind the Constitutional Court decision to stop all proceedings against Dr. Kizza Besigye and his co-accused can be justified and rationalised, it is also true that the ruling went beyond the matter before the court. The ruling was too liberal and untraditional; it was judicial activism.

The media, bless them, of course got it wrong by insinuating that the cases had been dismissed. But this was kiika, not the usual dismissal for lack of evidence. Besigye has actually been immunised from criminal prosecution in some way or other.

But I must say that stopping of Besigye’s trial is a win for all the players mostly because the decision of the Constitutional Court resonated with public perception. President Museveni wins for demonstrating that ‘it is possible’; the Judiciary wins for exercising ‘moral courage and boldness’ and Dr. Besigye for proving that power belongs to the people and justice is dispensed in their name.

In Uganda, there are two institutions that still command respect and the moral high ground. They are the Church and the Judiciary. However, of the two institutions, (we can be academic and call them ‘estates of the state’), the Judiciary has retained the highest level of moral decency.

Even in the strenuous circumstances of 1970s and 80s, the Judiciary still remained true to its cardinal function of arbitration without bias. The only problem was always implementation or abiding by court rulings. Which is not the business of the Judiciary.

The Church and Judiciary earned this respect through the martyrdom of Anglican Archbishop Janan Luwum and Chief Justice Ben Kiwanuka. A good like President Museveni leader appreciates their (Church and the Judiciary) opinions; as history has shown that any attempt to tamper with the free operations of these institutions leads to some level of state failure. ENDS

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