Why Uganda's Former Vice-President, Bukenya, Will Walk
The Anti-Corruption Court was not even in place when the alleged offence took place but we could say that the act itself could have been a criminal act, albeit the charge sheet needs amending to reflect the actual offence as perpetrated back in 2006 -2007.
[Global Commentary: Africa]
Sham trial or substance?
The trial of Dr. Gilbert Bukenya, former Ugandan Vice-President under Yoweri K. Museveni, nicknamed "Mahogany" for his apparent longevity in office and seemingly tough and unassailably hard nature will without a doubt prove that he can live up to his nickname.
Having obtained a copy of the indictment, it appears that the offence was committed before the actual law prohibiting it was enacted. That raises a lot of questions about the legislative process of the country, or at the least, the due application of the law as it is intended by the so-called authorities.
Is this an attempt to hood-wink the international community – particularly the donor countries into a false perception that the Ugandan government is at last coming to grips with the corruption that plagues public servants?
I stand to be corrected but it is a well-known principle of law that in countries with written constitutions like Uganda happens to have, passing laws in retrospect cannot cover an earlier offence and indeed the Indictment sheet of the former Vice-President clearly shows that the offences were committed between December 2006 and November 2007 but the Anti-Corruption Act was passed in 2009.
What is happening, effectively, is the court has put the "cart before the horse" and in any democracy, this is not permissible. The Anti-Corruption Court was not even in place when the alleged offence took place but we could say that the act itself could have been a criminal act, albeit the charge sheet needs amending to reflect the actual offence as perpetrated back in 2006 -2007.
Where does that leave Dr. Bukenya’s case? The charge sheet reads that Bukenya, "being a person employed as Vice President in the Government of the Republic of Uganda and Chairman of the Commonwealth Heads of Government Meeting (CHOGM) Cabinet Sub-Committee, on various dates between December 2006 and November 2007 within Kampala district did unlawfully and high handedly direct to be done arbitrary acts prejudicial to the interests of the Uganda Government, in abuse of his office; to wit; influencing and directing the award of the Contract for Supply of Executive Vehicles intended for use during Commonwealth Heads of Government Meeting (CHOGM) 2007, to Motorcare (U) LTD in total disregard of the laws, regulations and practices governing Public Procurements in the Republic of Uganda."
The Officer Preferring Charges is Sydney Asubo, the Director Legal Affairs, Inspectorate of Government.
Retroactive Law (ex post facto law)
An ex post facto law --from the Latin for "from after the action"-- or retroactive law is a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law.
In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted.
Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments --for example by replacing the death sentence with lifelong imprisonment-- retroactively. Such laws are also known by the Latin term In mitius.
In the United Kingdom, ex post facto laws are frowned upon, but are permitted by virtue of the doctrine of parliamentary sovereignty. Historically, all acts of Parliament before 1793 were ex post facto legislation, inasmuch as their date of effect was the first day of the session in which they were passed. This situation was rectified by the Acts of Parliament (Commencement) Act 1793.
Some laws are still passed retrospectively in the United Kingdom for example in 1990 the Pakistan Act --which readmitted Pakistan to the Commonwealth-- was one such law, despite being passed on 29 June 1990, section 2 subsection 3 states that "This Act shall be deemed to have come into force on 1st October 1989", nine months before it was enacted.
Indeed the Ugandan Constitution itself makes provisions for retroactive legal instances vis-a-vis Article 28, Section 7 states that “No person shall be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place constitute a criminal offence.” Unless the Anti-Corruption Act 2009, states otherwise, the constitution has priority on parliamentary legislation.
We have seen the effects of the Rome Statute itself in Uganda whereby crimes committed by both government and armed rebel groups before the statute was adopted into Ugandan law are outside of the boundaries of the law – leaving several alleged atrocities outside of the scope of The Hague's jurisdiction – to the disappointment of several human rights observers.
What does this mean to the average Ugandan?
Is this another example of rubber-stamp law enforcement? Several lay bystanders will assume that justice is at last being meted out to people who abuse the instruments of public office; but more closer scrutiny will show the acute observer that this is a mere attempt by the government to appease donors and foreign investors who have shied away from Uganda recently in the face of blatant instances of corruption that afflicts every nook and cranny of public office.
Indeed the problem in Uganda is not confined to the Members of Parliament and Ministers; it is the middle managers and public administrators who really run that country. Everyone knows that if you wish to import an item for business, obtain a work permit or any licence, you can spend twice the amount of time and money that it should take to obtain the paperwork simply because it is that middle manager who will lock your files away in his drawer and go away to the village for a relative's funeral; lose the keys to the storage facilities where the goods are; fail to find the paperwork that will release your goods from the warehouse; or even at worst, demand payment for the service that the tax-payer pays for and expects to be delivered as standard.
There is a serious level of inertia in public office today. No amount of legislation, initiatives or attempts at investigation
will be able to address the ills in that decadent mind-set. The hospital porter sees the Chief Superintendent Doctor of the public hospital taking medicines to his private clinic and getting away with it, and assumes that he also has a right to steal aspirins and sell them where he drinks from. This is all because the Doctor has seen that the ministers who embezzled the GAVI or Global Funds millions are still whizzing around town in their Mercedes cars and 4x4s without fear of the arm of the law.
Take the recent case in Eastern Uganda where a pregnant woman was left to die while in labour simply because her relatives could not bribe the hospital attendants to give her treatment. What about the Inland Revenue officer who would not release imported sugar because there are superior powers that have blocked the importation of cheaper sugar in order to protect the local producers' interests and maintain highly inflated sugar prices on the market?
The word impunity is an oftentimes misplaced term but surely one cannot drive around Kampala without such a term constantly rearing its head? The Boda-Boda (motor scooter taxis) rider who loads 3-4 passengers, without a helmet, undertakes you (on the left hand side near to the pavement), scratches your car bodywork, and expects compensation for damage to his bike and injury to his passengers. When asked to produce a licence and insurance certificate, he calls his mates (the 1000s of feral Boda-Boda riders within any square mile) and they demand mob-justice, with the police simply looking on or busy on their mobile phones.
I believe that it is Ugandans who encourage such decadence in their midst; there has always been a reluctance of sorts from people, particularly, the middle classes to address the ills that threaten that society. Whenever one complains of these problems in the country, they all say “that is Uganda for you” but this attitude will not last forever.
A good case study was the recent floods that blocked most parts of Kampala and the Entebbe highway for almost 12 hours. This problem has been waiting to happen because people have built in the wet-lands and there are no drainage channels for rain water anymore. It was these same middle-classes who were either stranded in Entebbe or missed their flights out of the country. For so long, they assumed that the floods in the wet lands such as Kalerwe or Bwaise was a problem for the working masses to deal with but it is also heading up the hills to Nakasero, Kololo, Naguru, Ntinda, Muyenga and beyond, it is only a matter of time.
Having travelled to several parts of the developing world, I cannot fail to notice that although corruption exists, things work. An Indian friend recently said this of India and Uganda “we are so corrupt in India that if you give an Indian money to build 20 hospitals, they will at least build 18 and steal the money for 2 but in Uganda, they will build one, steal the money for 19 and demand further funding for the one to be completed”.
Kenya, long renowned for its corrupt institutions, has shown the way forward to Uganda. Look at Nairobi City since 2008; it is clean, tobacco smoke-free and crime-free and Matatus and Boda-Bodas cannot access the central districts of the city.
Colleagues in Kigali, Rwanda narrate stories of Boda-Boda riders and passengers with helmets and only one permitted pillion passenger per motorcycle, traffic lights that work, incorruptible police officers and public officers etc. Development is intertwined with respect for law and order. Without those basic ingredients, a nation will never progress.
Mahogany, the former vice-president, will walk free and in the meantime, those people sending messages urging the current officials to improve the conditions in Luzira Prisons lest they too end up there, should hold fire; this is simply a white-washing exercise by government.
For as long as this regime remains in place, corruption will remain endemic and the establishment will always endeavour to protect their own and their personal interests.
“Change”, like the Kenyan bus conductor said the other day, “comes from you, you must bring change” – he does not have change.
The author Frank Abe is a practising Solicitor & Teacher in England and Wales and has conducted Human Rights lectures in Southern Africa and Europe. Contact: firstname.lastname@example.org
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