By Charity M. Ngabirano
Kakwenza Rukirabashaija, a novelist and government critic, was picked from his home in Kisaasi, a city suburb, on December 28 by armed men and held in an undisclosed location. His lawyers or family couldn’t find him. Imagine their distress. Despite several calls by human rights bodies, Kakwenza could not be traced or produced in court. This goes against the law.
Article 23(5) of the Constitution provides that where a person is detained, their next of kin has to be informed of the detention, they should be allowed access to medical treatment, as well as access to their lawyer and next of kin.
Where and for how long should one be detained?
Article 23(2) states that a person arrested or detained shall be kept in a place authorised by law and these places are to be officially gazetted by the Minister of Internal Affairs.
On the other hand, the Prison Act allows a police officer or any other law enforcement officer to arrest and detain an accused person in a “lock-up”, but in any case for not more than 48 hours from the time of his or her arrest.
A “lock-up” is a place maintained by a district or a police force, where arrested persons are temporarily detained, pending production in court.
The Ugandan Constitution provides that a person arrested shall be brought to court not later than 48 hours from the time of her/his arrest. The period runs from the arrest of the person, and if no charges are brought against the person arrested at the end of that period, the person shall be then released.
Kakwenza had been detained in a secret place for more than 48 hours. Article 23(8) states that a person who has been unlawfully arrested and detained by any person or authority shall be entitled to compensation from that person or authority.
On January 4, Makindye Magistrate’s Court ordered the unconditional release of Kakwenza, who, according to the Police, was arrested for abusing President Yoweri Museveni and his son, Lt. Gen. Muhoozi Kainerugaba. He was not released.
The High Court issued another order calling for his release. In the order issued by Justice Musa Ssekaana, the High Court specifically directed the Commander of Special Forces Command, Gen. Peter Candia; the Director of Criminal Investigations Directorate, Grace Akullo; Inspector General of Police Martin Okoth Ochola and the Attorney General of Uganda to ensure that Kakwenza is produced before the High Court at Kampala on January 12.
Yesterday, Kakwenza was charged with two counts of offensive communication under the Computer Misuse Act at Buganda Road Chief Magistrate’s Court before being remanded to Kitalya Prison.
Section 25 of the Computer Misuse Act 2011 on offensive communication states that, “Any person who wilfully and repeatedly uses electronic communication to disturb or attempts to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication whether or not a conversation ensues commits a misdemeanour and is liable on conviction to a fine not exceeding twenty-four currency points (sh480,000) or imprisonment not exceeding one year or both.”
Criminal proceedings have been instituted by the State against Kakwenza and in the names of the State, thus it is now Uganda vs Kakwenza Rukirabashaija. A person accused of a criminal offence is presumed innocent until proven guilty or they plead guilty on their own. So that is why one has to go through a trial process.
Steps in a criminal trial
When an accused person is arrested, the trial process begins by him/her being brought before court, informed of the accusations against him or her and then asked to plead to the allegations. To plead is to either admit or deny the charges against you.
Guilty or not guilty? Kakwenza was produced in court on December 11, and charged with offensive communication. He pleaded not guilty. The accused may also plead that he has previously been acquitted or convicted, or pardoned by the President on the same offence.
Where the accused pleads guilty, the judicial officer records those words and if he is satisfied that indeed the accused is guilty, the trial process ends there. There is no need for a further trial.
What happens if the accused pleads not guilty?
Where the accused pleads not guilty, but the case cannot be concluded on the same day, or if the judicial officer has no powers to hear the case, the accused person will be sent to prison for remand. Kakwenza is now in Kitalya Prison, on remand.
An accused person who pleads not guilty has a right to apply for bail, and this decision should be made promptly before the magistrate decides to sentence the accused. However, in circumstances like Kakwenza’s, where the prosecutor states that investigations are not yet completed, the court will fix the case for mention.
Mentioning a case is when the accused comes back to court and is informed about the status of his or her case. When Kakwenza returns to court on January 21, he will be informed whether investigations have been concluded or not.
Where the investigations are concluded, the court fixes the case for hearing. They will return on that date and the prosecution will call its witnesses to give evidence and Kakwenza’s lawyers will have a chance to ask each witness question. This is what we call ‘cross examination’.
The prosecutor may also re-examine his witnesses after this, to clear up any mistakes made in cross examination. If after all this, the magistrate isn’t satisfied that the evidence puts the accused to his defence, the case can be dismissed without putting the accused to his defence.
Where there is a clear case made out of the accused, he will then take his turn to call his witnesses or give any other evidence. Once Kakwenza’s lawyer exhausts his evidence and closes the case, the prosecutor will then sum his case, giving reasons why he should be found guilty and Kakwenza’s lawyer will also in turn present arguments as to why he should not be found guilty.
The magistrate will then give a judgement and if Kakwenza is found guilty, then he will be convicted. If he is not found guilty, then he will be acquitted.
At the sentencing, the accused may beg for mercy by stating some reasons as to why they should be given a lenient sentence, for instance, that he regrets committing the offence, that he has young children who will suffer if he goes to prison, that he is of poor health. Sometimes, instead the accused is faced with factors that aggravate his punishment, for instance an HIV-positive man defiling their own child.
If Kakwenza gets to this point and is dissatisfied with his conviction and/or sentence, then he can appeal to a higher court within 14 days. If Kakwenza is acquitted, the State may also appeal.
As for now, we await to see what happens on January 21. What will the State have to say?
The writer is an advocate
Note: The article is intended to provide information about general statements of law and is not intended to create an advocate-client relationship. Contact a lawyer on specific legal problems