Why is it that it has become exceptionally difficult to arrest some people who are clearly alleged to have committed criminal acts, even while their accomplices have faced the law? What are the circumstances behind and underneath those difficulties?
In mind is Aaron Baguma, a Police officer, who has been linked to an extra-judicial killing of a woman who was attempting to repay a debt for a car loan.
There have also been a number of Police officers, alongside Baguma, who were recently involved in alleged criminal beating of innocent civilians in Najjanankumbi. Inspector General of Police (IGP), Maj. Gen. Kalekezi Kayihura, instead of sanctioning them, merely sent them on, what is likely to amount to, a promotional course.
Then, there is Kayihura, himself. First, there is the issue of three people who sued him in his personal capacity, for beating them and causing bodily harm. Reminiscent of the case of Kenyan President, Uhuru Kenyatta, who, when facing an International Criminal Court (ICC), case, had the witnesses disappear, and others suspiciously withdrawing from the case. We saw an unvarnished duplication of this last week!
Secondly, despite being subpoenaed to appear in court, Kayihura has adamantly refused to appear, defying, even the office of the Director of Public Prosecutions (DPP). His apparent and presumtive boss, the minister of Internal Affairs, Lt. Gen. Odongo Jeje, now says that Kayihura cannot be sued because his is a constitutional office.
All Government offices are constitutionally established by, in this case, the 1995 Constitution. That is why an individual, who carries the physical functions of the office, is liable alongside the Attorney General of Government, who represents the constitutional role of the physical person. An office, per se, cannot carry out the physical duties that are described of it.
Take the example of former permanent secretary in the ministry of Public Service, Jimmy Lwamafa, and his office accomplices, who are in court for alleged theft of public funds; are we to say that their constitutionally-mandated offices stole the money, even when and as they occupied the said offices?
Did their prescribed literal offices steal the money in place of the individuals occupying them so that we can apportion blame to the space that is the offices? Should we therefore leave the individuals because it is their offices that are liable? This is an extremely lopsided reasoning!
Thirdly, it is criminal to defy a court summons; any person doing so is immediately arrested for being in defiance of the validity of the court. A number of Members of Parliament (MPs), have been arrested for various legal altercations, even when they are clearly protected by Parliamentary immunity. Were their offices not constitutionally constituted?
The problem with arresting Kayihura has been placed on the difficulty of the court carrying out the functions of the arresting officers, since everybody apparently fears to carry out their constitutionally-mandated function. Therefore, Kayihura should have been relieved of the office so as to warrant the officers, who are presumed to be “lower”, to carry out their duties.
Fourthly, in the most abrasive manner, Kayihura hooligans, suspected to have been drawn from a number of private security companies (in which, as a conflict of interest, Kayihura is alleged to be owning a couple of them – or so -) went and barricaded a Magisterial Court premises where Kayihura should have appeared, factually putting Uganda’s Law at ransom.
What is more, what was clearly outside the electoral mandate, these hooligans were declaring that Kayihura was now fit to be president, even when he had not resigned from his “constitutional” office. And when there is already a person occupying that office, should these people not be arrested and tried for treason?
All these shenanigans have taken the well-meaning Ugandans sideways. It is extraordinary that, in one of the most heartrending moments, the Chief Justice, Bart Katureebe, openly wondered whether there was rule of law in this country. Coming from the judgment of the Amama Mbabazi election petition, this was outstanding, indeed! It is thus no wonder that one patriotic wag said that in this country, “there is rule by law; and no rule of law”.
Then, the minister of Constitutional Affairs, Maj. Gen. Kahinda Otafiire, eventually chipped in to say that Kayihura “must” appear in court. Who is right; Katureebe and Otafiire, or Odongo? These people are all very high caliber cadres of the NRM regime, why is it that there is no consensus among them, even when before this debacle, the practice and the application of the law has been smooth, where it affected other citizens?
Where is the Attorney General, William Byaruhanga, the legal mind of Government, to interpret the law? Or, should there be an injunction on the case so that an interpretation can be decided by the Constitutional Court, if actually, there are some people in the NRM regime who are above and outside the law? That is what it appears Kayihura and some other fellows are!