Fr Simon Lokodo, the Minister of Ethics and Integrity, alleges that under French law, “a suspect is guilty until proven innocent”. He is frustrated that the fight against corruption is not making much progress and his solution is “to borrow the French law”. President Museveni has for a long time argued that suspects should not be given bail on grounds similar to those aanced by Lokodo.
In the first place, it is not true that in France a suspect is presumed guilty and must prove his or her innocence. On August 26, 1789, the French National Assembly approved the “Declaration of the Rights of Man and Citizen”. Article 9 provides that “all persons are held innocent until they shall have been declared guilty”.
The preamble to the Constitution of France passed on October 27, 1946, states that the French people “solemnly reaffirm the rights and freedoms of man and the citizen enshrined in the Declaration of Rights of 1789”. The Fifth French Republic of 1958 wrote a Constitution which incorporates by references the right to be presumed innocent. In its judgment of Jan.
19-20 1981 the Constitutional Court of France reaffirmed that the right of presumption of innocence is principle of constitutional stature in France. For more than 200 years, the French have presumed suspects innocent until proved guilty.
In fact the origin of presumption of innocence is in France and not Britain. The French jurist Johannes Monachus formulated the phrase presumption of innocence in the words “item qyuilbet presumitus innocens nisi probetur noceus” in 1309.
What appears to confuse many people is France’s two court system. In the first court, a judge carries out an investigation and questions witnesses and the accused. He may issue a warrant to search and seize evidence and summon any witness he wants to. Witnesses confront each other and often with the accused. The judge seeks out evidence of guilt as well as innocence. It is this process which has led people to wrongly conclude that the accused is presumed guilty. Not so. At this stage it is not a trial but a gathering of evidence both in favour and against the suspect.
Secondly, after the inquiry the Judge does not deliver a judgment. Instead he prepares a report containing all evidence gathered and submits it to another court. If, however, the Judge is convinced that the evidence is insufficient, there will no trial. It is in the second court that the trial is held in the same way as we do here. This is where the prosecution must prove a case against the accused if a conviction is to be obtained.
Secondly, presumption of innocence is embedded in our Constitution under the Right to a Fair Hearing. It can only be changed through a national referendum. Lastly, Uganda is signatory to the United Nations Declaration of Human Rights and the United Nations International Covenant on civil and political Rights. Both these instruments specifically provide for the principle of innocent until proven guilty in Articles 11(1) and 14(2) respectively. It is good manners to respect an agreement you have freely signed.
Since 1902, we have applied presumption of innocence and allowed suspects to have bail. How come it is only now that we seek to change these well settled principles. The answer lies in failed State institutions. Look at Uganda Police Force, for example. That is the institution that Lokodo should rely upon to detect and prevent corruption. However it only swings into action after reading the Auditor General’s report.
How will the police detect and prevent corruption when its main function seems to be to teargas Opposition politicians and permanently engage in running battles with demonstrating university students in military style? Unfortunately, the police leadership sees regime survival not detection of crime as its primary role.
When IGP Kale Kayihura launched last year’s annual crime report, it showed that 11 Ugandans are murdered every day. In other words, every two hours a Ugandan is murdered. How many arrests or convictions do we get? Negligible. That is the cost.
But you cannot blame these police officers. Investigations, detection and prevention of crime are not priorities during their training. They are militarised for a purpose other than detection and prevention of crime. Do not blame the James Ruhwezas, Felix Kaweesis and the Siraje Bakalekes.
Instead, pity them. They do not know what their role is because they have been taught the wrong things. They believe locking up Besigye is prevention of crime. Two weeks ago, Bakaleke told residents in Mukono to vote Museveni in 2016.He has no clue that he contravened Section 16(1)(d) of the Political Organisations Act and is liable to a sentence of imprisonment of one year in jail or a fine of Shs480,000 or both such fine and sentence. Of course, no one is going to arrest him. But if a Senior Superintendant of Police is that ignorant of the law, how about a detective corporal? These are the kind of officers Lokodo is relying on to detect and prevent corruption.
Faced with unsolved mounting statistics of crime, the President has no option but to seek to lock up every suspect with no bail. Lokodo is left with no option but to reason that since the police can no longer detect corruption, depending on the suspect is a way out. The suspect takes over the responsibility of the police. The pathologist he has hired will prove the cause of death of the deceased. The handwriting expert he has hired will show that the forged handwriting on the document is not his. No need for the government analyst. The suspect has to hire his own chemist to prove that the substance found on him or her is not heroin.
And in the meantime, the police will be doing what it was trained to do – clobber Opposition politicians, link them to rebel activities and lock them away. The President and Lokodo are looking for all kinds of avenues that can solve problems they themselves created. But their approach is not the answer. The answer lies in having the courage to marshal sufficient political will to do what is right. And that is not easy.
Mr Ogalo is an aocate. firstname.lastname@example.org
SOURCE: Daily Monitor