Category: Justice

{Two poachers have been sentenced to pay a total fine of 1.6bn/- or go in jail for 50 years after being found in unlawful possession of four pieces of elephant tusks and unlawful dealing in government trophies.}

The sentence was imposed by Senior Resident Magistrate Pili Mande at Manyoni District Court in Singida Region, after convicting the poachers, Bernard Wilson, alias Jacob and Hamis Athanas, alias Koesa, of the said two counts.

The magistrate sentenced each of the two convicts to 20 years imprisonment of being found with the elephant tusks, which are government trophies without permit and five custodian sentences for unlawful dealing with the government trophies.

Convicts, according to the magistrate, were each given option of paying fine of 648m/- for illegal possession of government trophies and 129,600,000/- for their involvement in poaching.

However, none of them managed to pay the fine and were thereafter ordered to go to serve their respective jail sentences as imposed by the court. The prosecution, led by State Attorney Salimu Msemo, had told the court that the accused persons committed the offences on February 23, this year, at Kiwele and Kambi Katoto Villages in Manyoni District, Singida Region.

During the trial, the prosecution called four witnesses and tendered several exhibits to prove the charges against the convicts, notably the four pieces of elephant tusks, one motorcycle, certificate of seizure and other documentary exhibits.

Before being provided with the sentence, the prosecution has asked the court to provide severe punishment to the convicts in order to serve a lesson to other poachers dealing with elephants, among protected wild animals.

On the other hand, the convicts had sought for lenient sentences because they were first offenders, meaning that it was the first time for them to be convicted of criminal offences and that they have some other relatives who depend on them.

{Nobody believed Eric Bushoborozi when he said he always heard voices. The voices, inside his head, would first talk, laugh and then bark at him. He played along. When the voices persisted, relatives advised that he sees a local Born-Again pastor. These voices, relatives said, were “evil clan spirits.”}

He gladly did so, and after the church service, he took pain killers – the voices had been preceded by an intermittent throbbing headache, which he says, he had grown used to.

On Friday, July 5, 2002, he went about his daily business but returned home early after feeling nauseated. What happened next, he does not remember. The heinous incident left the entire village of Rwimi, Kabarole District in downright shock.
Bushoborozi crept with a machete to where his eight-year-old son was napping and cut his head off.

Bushoborozi told police, and later argued in court that he saw and killed a big snake in his house.

“They told me in prison that I had killed my son,” the 47-year-old recounted the events to this newspaper in a recent interview in the leafy gardens of Fort Portal High Court. “They said I was going for murder.”

Records about his trial later that year are scanty but for such an atrocious crime, his file was swiftly processed and in an instant, paraded before the same court and remanded to Katojo prison in Fort Portal.
During the course of trial over the next four years, he underwent medical examination, and psychiatric evidence was presented, which confirmed that he suffered severe psychotic and deluded form of depression at the time he killed his son. So, he did not know what he was doing. And, he does not recall these details as well.

{{The problem}}

The voices inside Bushoborozi’s head came along with seeing things others around him did not see, a problem that started in 1998 with constant bouts of a hard migraine headache — the kind with symptoms such as pain around the temples [sides of the head], sensitivity to light or sound, blurred vision and more often nausea, but which he shrugged off casually with an occasional visit to a drug store for pain killers.

“The headache would come and go; sometimes it would be very hard and other times light. I had been advised to take painkillers every time it came,” he narrated. “Sometimes it would go even without taking the pills, so I got used.”

But year-in and year-out, the headache continued to grow stronger, but he continued to fight it by taking pills over the years, then came advice to see a pastor, and the grisly act that left everyone, including the Church very alarmed.

According to a 2009 study published in the General Hospital Psychiatry, a bi-monthly peer-review research journal for publications on psychiatry, medicine, and primary care, migraine headaches can precede the onset of mental disorders.
“Together, migraine and mental disorders cause more impairment than alone,” noted lead study author Gregory Ratcliffe, adding that: “Patients who have one condition should be assessed for the other so they can be treated holistically. Although it is important to know that both are present, treating one will have an effect on the other.”
Dr Julius Muron, a consultant psychiatrist at the National Mental Referral Hospital, Butabika, says hearing voices or auditory hallucination, may or may not be associated with a mental health problem. “But it is usually a symptom of a mental problem.”

{{The case}}

On December 1, 2006, Justice Rugadya Atwooki ruled that Bushoborozi was not guilty because of insanity under section 48 (1) of the Trial on Indictment Act. He was however, remanded back to Katojo Prison pending the minister’s orders – the minister was to decide whether he would be taken for mental treatment or dealt with otherwise.
After being remanded in 2006 pending the minister’s orders, no further action was taken. He spent another nine years on remand but at the same time while undergoing psychiatry examination, treatment and constant examination until release last year. In fact he would still be in prison by now, like other inmates of his calibre whose files were [and are every year] submitted to the Minister of Justice — who according to the law is supposed to study them take appropriate action.

Bushoborozi’s luck came around 2014, when a distant relative, Mr Cosmas Kateeba, a lawyer previously working in Kampala handled his case.

On June 17 2014, Mr Kateeba, a former principal lecturer at the Law Development Centre (LDC), wrote to the Chief Registrar Paul Gadenya bringing to his attention the case of Bushoborizi but got not feedback.

Against this backdrop, Mr Kateeba filed an application on behalf of Bushoborozi at the Fort Portal Court seeking among others, his release, and to strip the minister of powers to release mentally ill inmates found innocent by court.

A landmark ruling was delivered on July 10 last year by the court’s Judge David Batema stripping the minister of powers.

“I am of the strong belief that the trial court retains the power to issue special orders for the confinement, discharge, treatment or otherwise deal with the prisoner that is insane or has ceased to be insane. That criminal file remains open, pending the Judge’s special orders. It is not done with until all is done with the prisoner” ruled the judge, and further ordered for his immediate release.

{{Paying the painful price}}

The judge said the Constitution demands that the Judiciary must be independent in executing its work, and that having to wait for the minister’s orders interfered with its independence.

Even the State prosecutor Adam Wasswa, during the hearing of the case, conceded that the case was a complex one as there were no express procedures or solutions to the same.

Bushoborozi went back to his family, he was lucky to find his wife still around, and relatives to embrace him again. The nine years he spent in jail, he worked as a tailor, and so he had some money to start a new life. He still undergoes examination but only periodically.

Throughout our interview that ran for two days, he seemed fine; displayed an affable character with poise that hides his erstwhile despair.

Human rights activists, authorities and legal experts alike, interviewed for this article all concluded that keeping mentally ill inmates behind bars is not only cruel but also demonstrates the ills in our criminal justice system at the time when government is striving to conjure up clean human right slate. But the problem, all officials, said is the law.

Article 48 of the T.I.A gives powers to court on ruling on the special finding if not guilty by reason of insanity. When the court makes such a ruling, section 2 indicates, it “shall report the case for the order of the Minister, and shall meanwhile order the accused to be kept in custody as a criminal lunatic in such place and in such manner as the court shall direct.”

“The Minister may order a person in respect of whom a special finding has been made to be confined in a mental hospital, prison or other suitable place of custody.”
“The Minister clearly has no role in this, and it was until this point I was handling this case that I started wondering what the framers of the legislation were thinking,” Mr Kateeba argued.

“We might have won the first round [of stripping the minister of the powers] but the law still stands; this case can only serve as precedent in future legal challenges, which in fact should be waged, to scrap specific clauses [in the act] which do not make sense.”

Bushoborozi might have been lucky but several people with his condition have not been as lucky. The list of such prisoners pending minister’s orders as of 2016, according to available information to this newspaper, has about 40 inmates. All are in prison for either murder or defilement.

These are committed in various prisons, in Luzira’s Murchison Bay, Upper prison and Women’ wing respectively, Katojo and Masaka Central prison. They were all tried, declared innocent on grounds of insanity and not fewer than 15 have served more than 15 years on remand.

Through prisons publicist Frank Baine, the Commissioner General of Prisons, Dr Johnson Byabashaija, turned down a written request by this newspaper to visit and access some of the inmates on grounds that “a sane person cannot have meaningful conversation with a mentally unstable one”.

Mr Baine explained that Uganda Prisons Services as the custodian of all prisoners, is “taking good care of them.” “Because it is all we can do.”

“It is a challenge that we are facing, but what is clear is that those who are supposed to be addressing it are not concerned,” he said.
“There is a contradiction between the Trial on Indictments Act, which entrusts power over these people to the Minister, and Articles 23 and 24 of the Constitution protect personal liberties and respect for human dignity, respectively. Being placed on remand like in the case of these people, means you are still on trial,” he added, saying Article 23 does not stipulate how long should a trial last.

Remand or pre-trial detention is the “legally permitted time to spend in custody waiting trial or awaiting conclusion of the trial. The Constitution provides that in cases triable by the High Court as well as subordinate courts a person should be granted bail on such conditions as the court considers reasonable after for 60 days, and for cases triable only by the High Court 180 days before the case is committed.
“There are so many inconsistencies in the laws, but that is the work of lawyers and the judiciary.”

But even then, he said, “the challenge is that irrespective of how many recommendations are sent the Minister [politicians] do not seem committed to helping these people. So what if they release them and they go out there and do even worse?”

During our interaction with Bushoborozi, he acknowledged presence of the inmates whom he described as “great friends”, have been undergoing medication and “are now doing fine.”

The responsibility of proving one’s mental stability lies with the regional hospital psychiatry experts, who occasionally visits and examines these inmates. For a population of 34 million people Uganda has only 34 qualified psychiatrists. But each of the 13 regional referral hospitals have at least one psychiatry consultant.
When this paper contacted him recently, Justice minister Kahinda Otafiire said he was not aware there is any prisoner waiting for any of his orders to be released, and said if there is any, then probably, because the matter has never been brought to his attention. “I will crosscheck if there is any file.”

{Attorney General (AG), Mr George Masaju, yesterday evening tabled before the National Assembly amendments to the Written Laws Miscellaneous Act (No. 2) of 2016 which imposes a jail sentence of 30 years to persons who will marry or impregnate primary and secondary school pupils and students.}

Under the amendment, the fine also covers for any person who will marry or get married to a primary or secondary school student. Similarly, Masaju said any person who will facilitate, persuade or take part in a move to marry off a primary or secondary school pupil or student will be liable to a fine of 5m/- or five years imprisonment or both terms.

The AG said the move is aimed at ensuring schoolgirls complete their education without any hindrance in response to government free education policy.

He said the amendment are made to replace the Education Act, Cap 353 which prohibits marriage or impregnating primary or secondary school pupils and students. The Act offered a penalty of 500,000/- or three years imprisonment to wrong doers.

To ensure enforcement of the Act, Masaju said all headteachers and headmasters/ mistress will be required to issue a six-month report to the Commissioner of Education on the status of pupils as far as marriage and pregnancies are concerned.

For practitioners of Female Genital Mutilation (FGM), the amendment proposed a fine of 2m/- or 15 years jail sentence or both, the goal being to end such outdated practices.

Other amendments are on the Anti-Money Laundering Act fine which has proposed an amount equivalent to three times the market value of the property unlike the 500m/- maximum fine under the current law when the offence has been committed by a body corporate.

Mr Masanju also proposed amendment on the Forests Act Cap 323 where the current laws impose a fine of 1m/- for smugglers of logs. Instead the fine will be 5m/- or a three-year jail sentence.

{Kampala- Dr Kizza Besigye has defended his defiance campaign in the Constitutional Court, saying it is a lawful means by which citizens can boldly resist the illegal and unconstitutional acts and conduct of any person or authority to keep themselves in power against the provisions of the Constitution.}

The former Forum for Democratic Change presidential candidate submitted a written defence in court yesterday in response to the petition filed by the Attorney General seeking to permanently ban the Opposition party’s defiance campaign activities.

Dr Besigye did not deny using the word “defiance” throughout his presidential election campaigns or even calling on citizens to peacefully resist actions of any person who illegally retains themselves in power.

“I occasionally told those who attended my campaign meetings or rallies or events that my candidature would win the election through defiance. The import of this message was that even with the odds, the law, systems and processes heavily lopsided against my candidature, triumph would still be possible because of defiance by the citizens of Uganda of any unlawful and unjust actions, directives or practices of public authorities relating to elections,” reads his written reply to the Attorney General’s petition.

Besigye defends campaign
Dr Besigye, who is on remand on separate charges of treason in Luzira prison, also stated that his election campaigns were conducted within the provisions of the electoral laws.

He said his use of the word “defiance” during the campaigns did not amount to breach of any electoral law, otherwise he would have been charged in court.

He also contends that calling for an international audit of the presidential election results is a commonly used method internationally for settling questions about the quality of an election.

However, Dr Besigye admitted that he knows one of the avenues of challenging results of a presidential election is to file a petition in the Supreme Court, but said he was denied that option. “I did not file such a petition because I was denied the opportunity to do so having been arrested and held in confinement at my home in Kasangati,” he said.

The former presidential candidate further contended that he did not obtain or retain control of the government of Uganda or sought to do so by other means other than through the ballot box as demonstrated by his participation in the elections.

He asked the Constitutional Court to dismiss the Attorney General’s petition and order government to pay him damages for stress, pain and any other suffering caused to him.

His appeal to court
Dr Besigye also asked court to declare as unconstitutional the acts and conduct of any person who unlawfully retains themselves in power and another declaration that it’s not illegal for any citizen to rise up and defend the supremacy of the Constitution.

He urged the judges to declare that any act performed by any person or persons or institution by which the Constitution was nullified or overthrown in order to retain control of the government of Uganda regarding the February 2016 elections was unconstitutional.

The hearing of the petition against FDC and Dr Besigye begins today before a panel of the five justices of the Constitutional Court led by Deputy Chief Justice Steven Kavuma.

Other justices are Richard Buteera, Elizabeth Musoke, Catherine Bamugemereire and Cheborion Barishaki.

{PARIS — A former vice president of the Democratic Republic of Congo, Jean-Pierre Bemba, was sentenced on Tuesday to 18 years in prison for crimes against humanity and war crimes committed by militiamen under his command during a four-month rampage of looting, rape and murder in the Central African Republic.}

The sentence, handed down by an international panel of judges in The Hague, is considered significant for a number of reasons. Notably, Mr. Bemba was convicted even though he was far away from the militia fighting under his orders and was not present during any of the war crimes; the court said he was culpable because of his command responsibility. He should have halted or prevented the crimes, the judges said.

Mr. Bemba, who is now 53, was a businessman and scion of a prominent Congolese family before rising to the vice presidency — successful, rich and believed to be untouchable.

In 2002, he sent an expeditionary force of his political party, the Congolese Liberation Movement, into the Central African Republic to help put down a military coup there. Though Mr. Bemba rarely visited the troops, the judges at the International Criminal Court in The Hague found that he closely monitored their activities, and convicted him in March.

Sylvia Steiner, the presiding judge in the case, read out a summary of the court’s reasoning at the sentencing on Tuesday, saying that Mr. Bemba’s “knowledge of the crimes was unquestionable.” He did more than tolerate them, he deliberately “encouraged attacks on civilians,” the judge said.

The force of about 1,500 militiamen rampaged through towns on their path, claiming afterward that they had been poorly paid and that they were rewarding themselves by raping and pillaging.

The sentence given to Mr. Bemba heavily emphasized the militia’s unrelenting campaign of rape, “committed throughout the operation,” against women and men, adults and children. The judges cited instances of gang rape, and took note of the lasting physical and social harm that rape victims suffered, including stigmatization, ostracism and disease.

Because of the large number of rapes and what the judges called their particular brutality, rape as a war crime and a crime against humanity received more weight in sentencing even than murder — 18 years for the rape-related charges, with concurrent sentences of 16 years for murder and pillaging.

Prosecutors had asked for a 25-year sentence, and may appeal the sentence as too lenient, experts following the case said. Victims’ groups had asked for Mr. Bemba to be sentenced to the maximum possible penalty, without citing a specific figure.

Mr. Bemba had already been detained for eight years before and during his trial, so he would presumably now have 10 years left in his sentence if it stands at 18 years. It has been customary at international tribunals to deduct one-third of the total sentence, so Mr. Bemba may be eligible for early release in as little as four years.

Largely because of pressure from human rights advocates and women’s groups, organized or mass rape is increasingly being recognized and prosecuted as a weapon of war rather than as a byproduct of war. Other international courts have convicted defendants of rape as a war crime and a crime against humanity, but Mr. Bemba’s was the first such conviction by the International Criminal Court. In two earlier cases involving Congolese warlords, instances of rape were widely reported but not prosecuted.

In another twist, Mr. Bemba and four associates, including his former lead lawyer, are on trial in a parallel case at the same court, charged with trying to bribe witnesses in the war crimes case. Hearings in the contempt-of-court trial have been completed, and a verdict is expected later this year.

Witness tampering has become a major issue at the court, with allegations of bribery or intimidation occurring in almost every case so far. Some critics have called the contempt prosecution against Mr. Bemba and his associates a waste of time and resources, but lawyers who follow the matter say the court wanted to send a strong message by pursuing it.

In Kinshasa, the capital of Congo, members of Mr. Bemba’s political party, which he still heads, criticized the sentencing on Tuesday. “We will continue, and we will never cease, denouncing the selective justice of the I.C.C.,” Eve Bazaiba told a few hundred supporters, according to Reuters.

Géraldine Mattioli-Zeltner of Human Rights Watch said the sentence offered a measure of justice to victims in a country where armed groups have preyed on civilians with impunity for more than a decade.

Ms. Mattioli-Zeltner, who recently visited the Central African Republic, said that “many grave crimes, including the systematic use of sexual violence, remain unpunished” both there and in Congo.

More than 5,000 civilian victims participated in the court proceedings and may be awarded reparations payments. Judge Steiner said the court would deal with reparations in a separate ruling.

{A Dar Es Salaam resident, Leonard Mulokozi, appeared before the Kisutu Resident Magistrate’s Court charged with abusing President John Magufuli through social media.}

Mulokozi is alleged to have published defamatory information and transmission of offensive communication against the head of state through Whats App.

He pleaded not guilty to the charges and he is out on bail after meeting the bail conditions. Principal Resident Magistrate, Magreth Bankika, who is hearing the matter, ordered the accused person to secure one surety who was to sign a bond of five million.

The case was adjourned to July 18, for mention, as investigations into the matter, according to the prosecution, have not been completed. The prosecution, led by State Attorney Wankyo Simon alleged that the accused person committed the offence on June 2, this year, at Tanzanite Tower Sam Nujoma Road within Dar es Salaam.

It is alleged that on the material day, the accused person, knowingly published defamatory information in a computer system, namely Cellular phone through Whats App with intent to defame, insult or abuse his Excellency, President Magufuli.

The prosecution alleged that the accused person published information that reads “Hivi huyu Pombe ni kwamba hana washauri? Hashauriki? Au ni zuzu? Bwege sana huyu jamaa, he doesn’t consider the law in place before opening his mouth au na yeye anaumwa ugonjwa wa Mnyika.”

In another count, it is alleged that on the same date and place, the accused person, by means of application service in Whats App knowingly created a transmission of a comment which is offensive in character with intent to abuse the president.

This is a second case to be instituted before the same court involving President Magufuli. The first case involved a bus conductor, Hamimu Seif (42), who is charged with threatening to kill President John Pombe Magufuli through words.

In the first case in Tanzania’s history since independence for a person to be arraigned in connection of giving threats to a seating president with intent to kill him, Seif is alleged to have said, “Kwa haya mambo anayoyafanya Rais Magufuli nipo tayari kujilipua kwa kujitoa muhanga ili kumuangamiza.

{Prosecutors at the ICC have called for a minimum 25-year jail term in the landmark case.}

The International Criminal Court will Tuesday hand down its sentence against former Congolese vice president Jean-Pierre Bemba convicted of a slew of rapes and murders in Central African Republic over a decade ago.

The highest-ranking official to date to be sentenced, Bemba will face a three-judge bench at a public hearing at 1:45 pm (1145 GMT) at the court’s headquarters in The Hague.

Bemba, 53, was found guilty in March of five charges of war crimes and crimes against humanity committed by his private army called the Congolese Liberation Movement (MLC), which he sent to neighbouring CAR from October 2002 to March 2003 to put down a coup.

Prosecutors at the ICC have called for a minimum 25-year jail term in the landmark case, the first to focus on rape as a weapon of war by the ICC, which was set up in 2002 to try the world’s worst crimes.

But just hours before the sentencing, Bemba’s defence team gave notice late Monday that he would appeal his conviction.

“The appeal will not be limited… to criticism of the trial chamber’s findings, but will also allege that in material respects the whole trial process was flawed and unfair and that Mr Bemba’s rights as an accused were violated throughout,” defence lawyer Peter Haynes said in a filing to the court.

“No reasonable trial chamber could have convicted him of the charges he faced,” Haynes argued.

The trial judges erred because they had “misinterpreted and/or misapplied the law and took an unjustifiable approach to the evidence,” he added, arguing that “there was a mistrial.”

BLIND EYE

The judges found in their March 21 verdict that the former Congolese vice president turned a blind eye to a reign of terror by some 1,500 of his troops, sent to the CAR to prop up then president Ange-Felix Patasse.

Despite knowing what was happening, Bemba “failed to take all necessary and reasonable measures to prevent” a litany of crimes, which included the gang rapes of men, women and children, sometimes as their relatives were forced to watch, the judges said.

As well as the issue of rape as a weapon of war, the Bemba case is also the first at the ICC to focus on a military commander’s responsibility for abuses by his troops, even if he did not order them.

Defence lawyers however say Bemba, who has already spent eight years in detention since his 2008 arrest in Brussels, should be released.

Haynes said Monday that Bemba was “convicted of a case in which in material respects he was ignorant” and that the former leader of the Democratic Republic of Congo was “not liable as a superior for the actions of the MLC” in CAR.

{{Call for stiff jail term }}

In different cases, the ICC has previously sentenced two other Congolese warlords to 14 and 12 years in prison.

Activists warn however that handing down a light sentence against Bemba would fail to send a warning to other military commanders.

The landmark Bemba conviction was hailed at the time, even though many were shocked at how long it had taken for sexual violence to be focused on in an international trial.

American actress Angelina Jolie urged the international community “to build on the important legal precedent” set by the Bemba case so that “we can collectively shatter impunity for the use of rape as a weapon of war and terrorism”.